EB-5 Financing: Use of stabilized hotel revenues for determining job creation from hotel development
June 19, 2013 2:01pm
by the JMBM Global Hospitality Group®
By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
19 June 2013
Hotel Lawyers on EB-5 issues.One of the most critical elements in structuring an EB-5 offering to finance a hotel development is making sure the project will generate enough direct and indirect jobs. Because more than 90% of the EB-5 visas are at the $500,000 investment level, that means a developer needs 10 jobs for every $500,000 of EB-5 investment. And most EB-5 investors would like to see a safety margin in case the project does not perform quite as well as hoped, so maybe you need 12 jobs for every $500,000. At that rate you need 240 jobs to support a $10 million EB-5 investment. [If this is not familiar territory for you, see the list of articles on our website by visiting http://hotellaw.jmbm.com/2013/06/eb5_stabilized_revenues.html.]
In calculating the number of jobs created, one important question is: When do you measure the hotel's economic performance levels for job creation? The USCIS has approved economic models for calculating indirect job creation that use the revenues of hotel operation as one of the indicators of indirect job creation. And it makes a big difference if you run your calculations as the hotel is just beginning to ramp up operations or whether you can use the stabilized operating results.
That's the issue Catherine Holmes and Victor Shum take on today. Catherine and Victor are two of our EB-5 experts who:
EB-5 financing for hotel development: Use of stabilized hotel revenues for determining job creation from new hotel development
by Catherine DeBono Holmes and Victor T. Shum
USCIS has challenged EB-5 financing for hotel projects that rely on stabilized revenues as the basis for determining job creation.
Since 2012, the U.S. Citizenship and Immigration Services (USCIS) has issued multiple Requests for Evidence (RFE) challenging the validity and reasonableness of economic job creation models for hotel projects that rely on the revenues anticipated to be generated after the second or third year of hotel operation, instead of the revenues generated in the first or second years of hotel operation. In the hotel industry, a new hotel's future value is based on its anticipated "stabilized revenues," meaning revenues anticipated after the first two or three years of hotel operation.
The USCIS has instead used revenues from the first one to three years of a new hotel's operation, which are referred to as the "ramp-up phase" of a hotel's operation. However, using revenue predictions from the ramp-up phase of hotel operations does not reflect the full economic value or job creation potential of a hotel development. In this article, we explain why we believe the USCIS should use stabilized revenues in evaluating the job creation from hotel projects, for the reasons we discuss below.
Readers should note that the USCIS has not accepted the use of stabilized revenues as of the date of this article, and this article is intended to suggest that it should do so in the future.
Stabilized hotel revenues are the appropriate measure for calculating the full economic impact (including job creation) created by hotel projects. Depending upon the type of hotel, how many rooms, location and other factors, hotel revenues generally start from zero and then increase over a period of two to three years until they reach a level that is generally sustained for the useful life of the hotel.
Smaller hotels, select service hotels and hotels located near major demand generators tend to ramp up faster and stabilize after two or three years. Larger, full service hotels and hotels more distant from demand generators tend to ramp up more slowly and reach a plateau at the third or fourth full operating year. At any event, after the initial ramp up -- however long that takes -- a hotel typically reaches and remains at the so-called stabilized occupancy rate during its 20 to 30 year economic lifespan.
The industry terminology accurately reflects the economic realities of hotel development. The initial ramp up period does not reflect anticipated performance of the hotel. It only reflects the initial operations from the time the hotel first opens with little business, as it builds to full staffing complement, begins to work "the kinks" out of operations, gets marketing efforts underway and allows time for them to get traction, and builds the market image and place for the hotel. And the term "stabilization" properly reflects the industry experience over most of the past century that after this initial ramp up, the hotel reaches a stabilized level that will be maintained unless something dramatic happens to the hotel or in the marketplace (e.g. the hotel burns down and closes for two years for reconstruction, or a major economic disaster hits the area).
Why does it take time to reach stabilization?
The delay in reaching stabilized revenues can be caused by a number of reasons, including:
For these and other reasons, accepted hotel industry practices in forecasting hotel revenues generally project that the first partial year and up to the first two or three full years of hotel operations will generate lower annual revenues than the hotel will generate after stabilization.
The USCIS regulations do not require a two year time period for job creation in a project sponsored by an approved regional center.
USCIS regulations make a distinction between substantiating the job creation requirements for direct EB-5 investments and regional center sponsored EB-5 investments. Direct EB-5 investments require evidence of actual employment such as tax records and Employment Eligibility Verification Forms (Form I-9). EB-5 investments through a regional center, however, are required to produce evidence that the investment will create full-time positions, directly or indirectly, through reasonable methodologies.
In its May 30, 2013 policy memorandum, the USCIS has taken the position that the two year period in which jobs must be created is deemed to commence six months after the adjudication of the Form I-526 petition. This policy does not work for larger hotel projects, larger fund raises and projects with long project schedules since EB-5 investors could be filing their I-526 petitions one or more years apart which results in a moving job creation timeframe under the existing policy.
There is no regulatory requirement that jobs created through a regional center investment be created within two years. In fact, the USCIS recognizes that many economic models have no temporal assumptions, and are therefore presumed to meet the requirements for job creation. With respect to hotel development, a reasonable methodology of determining direct and indirect job creation should be based on accepted hotel industry practices, and should not be subject to imposed deadlines that are not required by law or regulations and not appropriate for the industry in which the jobs are created.
The USCIS should consider the nature of the hotel industry in determining a reasonable methodology for determining the jobs created as a result of a hotel development.
The USCIS recognizes in its internal policies that it is appropriate to consider the nature of the industry when making a determination of the time period within which jobs will be created.
With respect to a hotel development, it is reasonable to expect that the EB-5 investor's funds will be fully invested well before the end of a two year time period, and the hotel will likely be completed and opened within two years of the date the investor's funds are used, barring any unusual circumstances. It is also reasonable to expect that the hotel will undergo a ramp-up period for the first three years of operations, followed by a long stable period of revenues lasting 20 to 30 years.
Hotel investors and lenders use stabilized revenues as the appropriate measure of a hotel's economic performance. Therefore, the USCIS should accept the same standard measurement as part of a reasonable methodology for projecting job creation with respect to a new hotel development using EB-5 funds.
A new hotel can be expected to create total jobs based on the hotel's stabilized revenues within a reasonable period of time based on accepted hotel industry standards.
If a new hotel is anticipated to be built within a period of two years, it is reasonable for the USCIS to conclude, at the I-526 petition stage, that the hotel will, over most of its economic life, have a level of revenues generally equal to the "stabilized revenues" forecast in accordance with generally accepted hotel industry practices for the fourth full operating year of the hotel.
As previously discussed, the revenues for the period before the fourth full operating year are not considered to be representative of the long term revenues of a hotel. The USCIS should adopt the hotel industry standard for determining hotel revenues for the following reasons:
The USCIS should review the projections of stabilized hotel revenues at the I-526 petition stage to determine that the projections are based on reliable data and prepared in accordance with standard hotel industry methodology.
Like other economic stakeholders in a hotel project, the USCIS should review at the I-526 petition stage a hotel's projected stabilized revenues to determine its likely long term performance. If projections are based on reliable data and have been prepared in accordance with hotel industry standards, that should be evidence that the hotel can reasonably be expected to cause the creation of jobs that correspond with the projected revenues. Since the stabilized revenues are considered the best measure of a hotel's economic performance by economic stakeholders in a hotel project, it is reasonable for the USCIS to use stabilized revenues as the most representative data on which to base estimates of job creation.
How to find out if EB-5 financing could work for your hotel development project
Yes, EB-5 financing is real! In a time where debt is difficult to secure, it can play a meaningful role in the capital stack. But EB-5 financing must be used appropriately and its requirements (set forth by the U.S. Citizen and Immigration Services or USCIS) are very specific.
My partners, Catherine Holmes and Victor Shum, have written some great articles on various key aspects of the EB-5 Immigrant Investor Visa Program and regularly help hotel developers take advantage of this opportunity where it is appropriate. We invite you to take a look at the free information on EB-5 financing for hotel development and to call us if you would like to discuss it further.
To learn more, go the HotelLawyer.com. Scroll down on the home page until you see "EB-5 financing" on the right side and click there. You will then see all the EB-5 articles we have posted.
Catherine Holmes is a transaction and finance partner with JMBM's Global Hospitality Group® and Chinese Investment Group™ and specializes in resort and hotel purchase and sale transactions, resort and urban mixed-use financing and development, hotel management and franchise agreements, and hospitality asset workouts. With her background in securities transactions, she also assists hotel developers with public and private offerings of securities. For more information, please contact Catherine Holmes at +1 310.201.3553 or firstname.lastname@example.org
Victor Shum is a corporate and securities partner in JMBM's Global Hospitality Group® and Chinese Investment Group™. He has advised clients on EB-5 matters since 1999 and assists hotel developers on EB-5 financing as well as public and private securities, mergers and acquisitions, cross-border issues, and other strategic business transactions, including real estate transactions and intellectual property and technology licensing matters. For more information, please contact Victor Shum at +1 415.984.9611 or email@example.com
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to help investors be successful in bidding for hotel acquisitions, and helping investors and lenders to unlock value from troubled hotel transactions. Who's your hotel lawyer?
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.
Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider.
Contact: Jim Butler
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