EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 4, No. 1 • April 01, 2014
1. USCIS Holds Teleconference With EB-5 Stakeholders – Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.
2. USCIS Releases New EB-5 Statistics; Chinese Petitions Surge – Chinese investors now account for more than 80% of EB-5 visas issued, up from 13% a decade ago.
3. State Dept. Reports EB-5 Category Will Remain ‘Current’ for Foreseeable Future – The Department of State’s Visa Bulletin for March 2014 states that the EB-5 category will remain “Current” for the foreseeable future.
4. SEC Obtains Settlements in $158 Million Fraud – The fraudulent scheme offered the investors a stake in a hotel and conference center in the Chicago, Illinois, area. Investors wired a minimum of $500,000 each plus a $41,500 “administrative fee” to the defendants’ bank accounts.
5. Rep. Polis Introduces EB-5 Reform Bill in House of Representatives – Among other things, the bill would make the EB-5 program, set to expire in September 2015, permanent.
6. Sen. Coburn Queries All Regional Centers – Sen. Coburn explained that the information gathered would help the committee better understand the EB-5 program.
7. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy – The Department of Homeland Security’s Office of Inspector General released a controversial new report on the EB-5 regional center program that includes recommendations.
8. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program – In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program.
9. New Publications and Items of Interest – New Publications and Items of Interest10. Member News – Member News11. EB-5 Government Agency – EB-5 Government Agency
1. USCIS Holds Teleconference With EB-5 Stakeholders
U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.
Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.
USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.
USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.
Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.
USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.
As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.
LIST OF EB-5 REGIONAL CENTERS BY STATE
This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.
2. USCIS Releases New EB-5 Statistics; Chinese Petitions Surge
U.S. Citizenship and Immigration Services (USCIS) has released statistics for fiscal years 2008 through 2013 on I-526 immigrant petitions for alien entrepreneurs and I-829 petitions by entrepreneurs to remove conditions.
I-526. The statistics show that at the end of FY 2013 (September 30, 2013), there were 7,131 I-526 petitions pending. By contrast, at the end of FY 2008, there were only 853 petitions pending.
I-829. The statistics show that at the end of FY 2013, there were 1,345 I-829 petitions pending. By contrast, at the end of FY 2008, there were only 454 petitions pending.
Recent reports have noted a surge in petitions by Chinese entrepreneurs. Chinese investors now account for more than 80% of EB-5 visas issued, up from 13% a decade ago.
3. State Dept. Reports EB-5 Category Will Remain ‘Current’ for Foreseeable Future
The Department of State’s Visa Bulletin for March 2014 states that the EB-5 category will remain “Current” for the “foreseeable future.” This is a relief for many EB-5 immigrant investors and attorneys, because the Department of State had earlier warned that EB-5 visas might hit the 10,000 annual cap some time this fiscal year. If so, the Department of State would have to issue a cutoff date for EB-5 investors, forcing many of them to wait longer for an EB-5 visa.
As stated in the previous article, over 7,000 I-526 EB-5 petitions are pending at U.S. Citizenship and Immigration Services. That does not include spouses and children of principal EB-5 applicants. Thus, it is only a matter of time until the EB-5 category retrogresses. It is unclear when that will happen.
4. SEC Obtains Settlements in $158 Million Fraud
On March 17, 2014, the U.S. District Court for the Northern District of Illinois, Eastern Division, entered a consent judgment against defendants Anshoo R. Sethi, A Chicago Convention Center, LLC (ACCC), and Intercontinental Regional Center Trust of Chicago, LLC (IRCTC), for their roles in raising approximately $158 million from over 250 Chinese investors as part of a fraudulent offering that targeted foreign nationals who sought to invest in the United States via the EB-5 program, as alleged in the SEC’s February 2013 complaint.
The fraudulent scheme offered the investors a stake in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in the Chicago, Illinois, area. Investors wired a minimum of $500,000 each plus a $41,500 “administrative fee” to the defendants’ bank accounts. False claims made by the defendants to investors included that several major hotel chains had signed on to the project, that the defendants had acquired all the necessary permits and approvals for construction, that they would contribute land valued at over $177 million, and that the project was likely to generate more than 8,000 jobs. The SEC’s complaint also notes that the defendants made false and misleading statements, and provided falsified documents, to U.S. Citizenship and Immigration Services.
The final judgment provides the following relief:
- joint-and-several liability for over $11.5 million in disgorgement and prejudgment interest, subject to offsets for certain amounts refunded or credited to investors;
- permanent injunctions against future violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder;
- an order enjoining and restraining defendants for 20 years from offering or selling securities issued by any of the defendants or issued by any entity owned or controlled by Sethi;
- a civil penalty of $1 million against defendant Sethi;
- civil penalties against ACCC and IRCTC;
- ACCC and IRCTC agreeing to wind up and dissolve after satisfying their payment obligations.
The defendants will satisfy their payment obligations, at least in part, by paying over the funds frozen in certain bank accounts pursuant to the court’s asset freeze order in this case and also by selling property held in ACCC’s name.
The SEC filed its case on February 6, 2013, and obtained a temporary restraining order and asset freeze against Sethi, ACCC, and IRCTC. On April 19, 2013, the court granted the SEC’s motion to return to investors the entire $147 million of principal that had been frozen pursuant to the SEC’s motions. The agreed-upon settlement resolves, among other things, the disposition of approximately $11 million in administrative fees paid by investors, which are the only funds remaining to be returned.
Sethi, ACCC, and IRCTC neither admitted nor denied the SEC’s allegations.
SEC’S ANNOUNCEMENT OF THE SETTLEMENTS
SEC’S COMPLAINT DETAILING THE CHARGES
5. Rep. Polis Introduces EB-5 Reform Bill in House of Representatives
Rep. Jared Polis (D-Colo.) recently introduced “The American Entrepreneurship and Investment Act of 2014,” a bill that would make the EB-5 program, set to expire in September 2015, permanent. The bill would also make various changes to the program. “The EB-5 program provides significant injections of capital and talent to our economy and, with the improvements we make in this bill, will ensure that the best and brightest minds from around the world continue to come here with their ideas and business,” Rep. Polis said.
Highlights include, among other things:
- making adjustments to targeted employment area designations;
- tying the minimum investment amount to the Consumer Price Index;
- including part-time employees who work at least 35 hours per week in the definition of “full-time employment”;
- establishing a preapproval procedure for business plans;
- allowing concurrent filings of EB-5 petitions for immediate family members;
- allowing premium processing of EB-5 petitions;
- providing national interest waivers for physicians working in shortage areas of veteran facilities and entrepreneurs and job creators who have been engaged in a new commercial enterprise that has benefited the U.S. economy and satisfied certain employment creation requirements; and
- eliminating per-country quotas for EB-5 immigrant visas, with a goal of alleviating the backlog in the Chinese visa category
6. Sen. Coburn Queries All Regional Centers
Sen. Tom Coburn (R-Okla.) recently sent a letter to all EB-5 regional centers asking about their participation in the EB-5 immigrant investor program. As the ranking member of the Senate’s Homeland Security and Governmental Affairs Committee, Sen. Coburn explained that the information gathered would help the committee better understand the EB-5 program.
His wide-ranging questions covered such topics as the annual amount of investment and number of individuals by country of origin making investments; the name, address, and description of each business in which the regional center has made an investment and the number of jobs created; a list of current or former corporate officers of the regional center, including titles, positions, and dates of employment; and the name and address of any individual or entity with which the regional center has an agreement to provide legal, accounting, recruiting, or consulting services, along with a description of the services provided.
The letter is dated February 14, 2014. IIUSA, the trade association of EB-5 regional centers, responded with a letter outlining information about the program. IIUSA noted that the EB-5 regional center program is designed as a competitive marketplace, so many of those arrangements and relationships “are considered by our members to be proprietary and confidential.”
IIUSA noted that much of the information being requested is captured on Form I-924A and is therefore on file at U.S. Citizenship and Immigration Services (USCIS). Regional centers must file this form annually. IIUSA added, “It is important to note that our members may consider specific information included on Form I-924A to be proprietary and confidential, and to our knowledge USCIS has treated it so in responding to Freedom of Information Act (FOIA) requests for it.”
IIUSA also noted that a FY 2012 study found that the program’s economic impact increased dramatically over the previous two years by contributing more than $3.39 billion to U.S. GDP, supporting over 42,000 U.S. jobs, and generating over $712 million in federal/state/local tax revenue.
7. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy
The Department of Homeland Security’s Office of Inspector General (OIG) released a controversial new report on the EB-5 regional center program that includes four recommendations.
OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.
An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.
The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.
Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. According to the OIG, USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, the report claims that USCIS does not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.
As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.
OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.
Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was “puzzled” by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.
For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. All EB-5 related adjudications are being relocated to this office. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive May 2013 EB-5 policy memorandum and has strengthened interagency relationships.
IIUSA said these and other rebuttals in the USCIS response “should raise significant questions about the credibility of the report,” which was “further undermined by the recent resignation of [Charles Edwards, DHS’s Acting Inspector General], who himself was under investigation.”
The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” OIG-14-19.
IIUSA’S STATEMENT in response to the report
8. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program
The U.S. Securities and Exchange Commission’s (SEC) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services (USCIS) have jointly issued a warning to individual investors about fraudulent investment scams that exploit the EB-5 immigrant investor program.
In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program. USCIS explained that business owners apply to USCIS to be designated as “regional centers” for the EB-5 program. Regional centers offer investment opportunities in new commercial enterprises that may involve securities offerings. The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment. The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings. For example, in a recent case, SEC v. Marco A. Ramirez, the SEC and USCIS worked together to stop an alleged investment scam in which the SEC claims that the defendants, including the “USA Now” regional center, falsely promised investors a 5 percent return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal use, such as funding their Cajun-themed restaurant. According to the SEC’s complaint, the investors did not obtain even conditional visas as a result of their investments through the USA Now regional center.
In another case, SEC v. A Chicago Convention Center, the SEC and USCIS coordinated their efforts to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, including falsely claiming that the business had acquired all necessary building permits and that the project was backed by several major hotel chains.
According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied. The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.
USCIS noted that as with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. USCIS recommended the following steps:
- Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS’s website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.
- Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.
- Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.
- Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.
- Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.
- Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.
- Consider the developer’s incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.
- Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:
- – Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.
- – Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.
- – Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
- Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company’s management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
- Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
- Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.
USCIS noted that if an investment through EB-5 turns out to be in a fraudulent securities offering, the investor may lose both his or her money and a path to lawful permanent residence in the United States. USCIS said any EB-5 offering should be carefully vetted before investing money and hope of becoming a lawful permanent resident in the United States.
USCIS ALERT That page also has links to the alert in Chinese, Korean, and Spanish.
9. New Publications and Items of Interest
Improving the EB-5 program. Brookings-Rockefeller’s Project on State and Metropolitan Innovation released a report in February 2014, “Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development.” The report notes that although use of EB-5 financing has increased dramatically in recent years as a source of regional economic development, the program faces some major challenges. First, immigrant investors encounter a complicated network of intermediaries with little regulatory oversight, which discourages investment. Immigrants also bear the burden of compliance with program requirements, although they have little control over the investment process. Second, there is generally little coordination between regional centers and local economic development agencies (EDAs), even though these entities often share similar goals and could develop mutually beneficial partnerships. Finally, there is a dearth of reliable and publicly available data that would enable better monitoring and evaluation of the economic effects of regional center investments.
The report recommends designating an oversight role for the Department of Commerce to supervise the adjudication of regional centers, standardize data and methodology, and better monitor program impact; creating incentives for partnerships between regional centers and EDAs, thus aligning similar goals in mutually beneficial arrangements; and generating high-quality, multi-variable public data on regional centers to facilitate better evaluation of the program.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
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ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
10. Member News
The following ABIL members and firms are included in the Chambers Global Rankings for Business Immigration:
H. Ronald Klasko
Ivener & Fullmer LLP
Klasko, Rulon, Stock & Seltzer, LLP
Laura Devine Solicitors
Pearl Law Group
Seyfarth Shaw, LLP
Wolfsdorf Immigration Law Group
Laura Devine and Nicolas Rollason are listed in the United Kingdom rankings and Isa Soter is listed in the Latin American rankings.
Eugene Chow has published a new article on EB-5 and Hong Kong investment programs.
Steven Clark addressed the Massachusetts Bar Association on February 6, 2014. The CLE topic was the nuts-and-bolts of EB-5 investor petitions for direct investment or regional centers.
H. Ronald Klasko, Bernard Wolfsdorf, and Stephen Yale-Loehr spoke about the EB-5 immigrant investor program at the Invest in America Summit on March 22-23, 2014, at the Jing An Shangri-la Hotel in Shanghai, China.
Mr. Klasko recently published several blog entries. “Chinese EB-5 Quota Retrogression – Part 2” “FAQs on EB-5 Quota Backlog”
Mr. Klasko spoke on “EB-5, Where Are We Now?” at the annual meeting of the Mexico City Chapter of the American Immigration Lawyers Association in Bogota, Colombia. Mr. Klasko gave a legislative update on the EB-5 program and reviewed documenting lawful sources of funding, developments in adjudications, and “musts” when dealing with regional centers.
Angelo Paparelli has published several new blog posts: “EB-5 Immigration Lawyers Wear Too Many Hats” “Senator’s Saucy Request Roils EB-5 Regional Centers”
Mr. Wolfsdorf was recently quoted on CNNMoney in an article on a dramatic surge in Chinese applicants for the EB-5 program. “The program has literally taken off to the point [that] in China, the minute anybody hears I’m an immigration lawyer, the first thing they say is, ‘Can we get an EB-5 visa?’ ” “There is a panic being created in China about the demand [getting] so big that there is going to be a visa waiting line,” he said.
Mr. Wolfsdorf has published a new blog. “Predictions for the Year of the Horse: 5 Reasons Why the EB-5 Program Will Flourish in 2014“
Mr. Wolsforf, founding Partner of Wolfsdorf Rosenthal LLP, has been named Corporate Immigration Lawyer of the Year for 2014 by Who’s Who Legal for the fifth consecutive year. Mr. Wolfsdorf received this distinction after garnering the most votes from over 500 of the top-rated immigration lawyers in the world.
11. EB-5 Government Agency
USCIS Web Page on EB-5 Immigrant Investors
USCIS Policy and Procedural Memoranda on EB-5 Investors
Immigrant Investor Regional Centers List
Form I-526, Immigrant Petition by Alien Entrepreneur
Form I-829, Petition by Entrepreneur to Remove Conditions
Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program