December 11th, 2014 by H. Ronald Klasko
An important part of my responsibility to my regional center and developer clients is to keep up to date on prevailing trends among migration agents, especially in China (since China represents over 80% of the EB-5 investor market). In doing so, I have noted that one of the biggest changes in the marketplace in the last year involves the escrow account.
A year or two ago, the standard in the marketplace was a “traditional escrow” whereby each investor’s invested funds remained in escrow until that investor’s EB-5 petition was approved. This worked relatively well when USCIS processing times were six months. As processing times increased to 12 months or 18 months, or in some cases even longer, traditional escrow has been eliminated as an option for many developers who simply can’t wait that long for EB-5 capital to be made available to the project.
As a result, although some projects still proceed with traditional escrow, most agents and investors now realize that traditional escrow is not feasible for many otherwise very desirable EB-5 projects. Three forms of escrow have evolved in its place.
The most favored escrow by many agents is the “early release” escrow. This escrow provides that all of the investors’ funds will be released from escrow when an exemplar I-526 project pre-approval is approved or when one or more investors’ I-526 petitions are approved, or a combination of both. These events mean that USCIS has approved the project, leaving the approval of the investor’s source and path of funds as the investor’s sole risk. However, the disadvantage of the early release escrow is that it may take 12 to 18 months to get the first petition, or exemplar petition, approved, which can be an unacceptable length of time to the developer. This process can be speeded up by filing an exemplar petition before the marketing process even begins, which would likely result in an exemplar approval long before any investors are approved. Another strategy is having one or two investors ready to file before the full marketing effort commences.
The “holdback escrow” results in substantial investment dollars getting to the project much quicker. The concept of the holdback escrow is that most of the investment dollars are released to the project upon the filing of the I-526 petition. However, a certain amount (often 20%, sometimes more or less) is held back in escrow until the investor’s I-526 petition is approved. This concept is premised on an approximate 20% denial rate of I-526 petitions. However, it does not address the concern of agents and investors regarding the prospect of all petitions being denied if the project is found non-compliant.
The structuring of the holdback in the offering documents is critical to make certain that all of the money can be traced to the investor and to make certain that none of the investor’s money is held back once that investor’s I-526 petition is approved. The holdback escrow has been approved for many hundreds of investors. However, without warning, USCIS started challenging holdback escrows on various regional center and project applications. The challenge was based on the issue of whether any of the held back money from earlier investors could be used to repay any future denied investors and not go into the project. This position of USCIS failed to take into account the fungibility of money.
Our office represented the regional center in the application that went to the Decision Board for review of the holdback issue. We presented substantial proof of both the large number of applications that have been approved using the exact holdback language that was utilized in this regional center application and the even larger number of applications that were pending using this same language that had already been approved so many times. After a lengthy delay, the USCIS Decision Board approved the application. Since no written decision was issued in connection with the approved application, we do not know the ultimate reasoning of USCIS and whether the approval was limited to the language that we carefully crafted in our application. At a recent stakeholders engagement meeting, USCIS indicated that approval of holdback escrows would be case-by-case depending upon the specific language of the holdback escrow agreement.
Some agents are becoming receptive to a full release from escrow when the investor’s I-526 petition is filed. This is usually accompanied by a guarantee from the developer to return the investor’s money in the event of an I-526 denial within a defined period of time. This option is only available to developers who have a certain credibility in the marketplace and whose guarantee is deemed to be credible. Usually the guarantee is not triggered until some months (often 3) have passed, during which the agent will attempt to replace the failed investor in the project.
An interesting phenomenon is how agents who previously insisted on traditional escrow now sometimes push for holdback escrow or escrow release on I-526 filing. The reason for this is that agents are generally compensated when the money is released from escrow. As a practical matter, agents may be more likely to promote a project that will result in compensation to the agent more quickly. However, this has to be balanced against the likelihood that the project may be more difficult to sell to investors, who seek the most protection for their investment dollars.
This is one of many issues that I monitor closely in my ongoing dealings with agents on behalf of my clients.
November 6th, 2014 by H. Ronald Klasko
I have written several blogs on the anticipated EB-5 quota backlog, what it means and what it does not mean. This is a different blog. This blog is focused on how regional centers, project developers and migration agents can prepare for – and maximize opportunities during – times of quota retrogression.
First, let’s discuss where we are today. The chances of EB-5 quota retrogression in 2015 for investors born in China remain very high. It is likely that the quota retrogression will commence in the April to July 2015 timeframe. The cutoff date will likely be sometime in 2013. Once a cutoff date is set, it will likely move slowly month to month – perhaps two to three weeks per month. This means that the quota backlog will continually get longer. That will continue indefinitely unless and until either the Congress or the President takes action to increase the numbers.
The chances of the Congress increasing the numbers are not good. Most likely, EB-5 numbers will not be increased until quotas for all other immigration categories – employment and family – are addressed. Quotas for all categories likely will not be addressed outside of comprehensive immigration legislation. The chance of comprehensive immigration legislation in the near future is highly speculative at best.
There are two possible presidential executive actions that could address the problem. One is removing family members from the worldwide quota. This author believes that such presidential action would be justified based on the existing language of the Immigration and Nationality Act, but the politics behind taking such action relating to EB-5 and other immigrant quotas are complicated at best. The other possibility – which might have a greater chance of happening before the end of the year – is presidential action to “recapture” unused visa numbers. This would not be as good of an administrative solution as removing family members from the quota, but it would provide at least a short term fix that would likely eliminate EB-5 quota backlogs for at least a year or two. The prospect of a presidential decision to recapture unused visa numbers is also speculative, but perhaps better than the chance of removing family members.
So what actions should be taken in the short term to prepare for the onset of an EB-5 quota waiting list for China? Here are some thoughts:
Encourage investors who are interested in the EB-5 program to invest now. It is almost certainly already too late to avoid the impact of the quota backlog. However, there is no doubt that investors who invest in 2014 and 2015 will have far shorter waiting lists than investors who invest in subsequent years.
Explain to investors that what looks like a two year backlog is really less than one more year than the current wait. Let’s assume that in the middle of 2015 a cutoff date of June 2013 is established. This looks like a two year wait for investors. However, the current I-526 processing time is approximately 14 months. This means that investors currently have a 14 month waiting period. In this example, the additional waiting period would only be 10 months.
Encourage investors with children to invest sooner than they otherwise would have. The prevailing wisdom has always been that it is sufficient to file the I-526 petition before the child turns 21 in order to prevent the child from aging out. As explained in previous blogs, this will no longer be the case when quota backlogs set in. Investors with children who are approaching age 18 should be encouraged to invest now in order to maximize the chance that the child will be able to immigrate with the family.
If the child is already over age 18, consideration should be given to having the child be the investor, which eliminates any concern about the child aging out. If the entire family wants to immigrate, two $500,000 investments would be the safest course.
Explain to investors that the quota backlog in the EB-5 category is likely to be far shorter than the quota backlogs in almost every other category of family and employment-based immigration for people born in China.
Encourage investors to invest sooner rather than later to avoid an increase in the investment dollar amount. Through either administrative action or Congressional action, it is certainly possible that the minimum investment amount could be increased within the next year or two. Although this is far from a certainty, an investor who invests while the level is $500,000 will be grandfathered, even if there is a subsequent increase in the minimum investment amount. Also, it should be noted that the $500,000 investment amount – while it still exists – is lower and often substantially lower than investment amounts required in other countries with investment immigration programs.
Explain to investors that the waiting lists actually provide increased safety and somewhat less risk relating to the condition removal and ultimate permanent residence process. Here is why: the key to the condition removal process is jobs. The delay in the onset of the investor receiving conditional residence will mean a delay in the ultimate filing date of the condition removal petition. This means that the developer will have more time to create the necessary number of jobs. This can be very important in projects with unexpected delays. In addition, many projects previously counted only construction jobs because operations – or at least stabilized occupancy – would not occur until after the condition removal process. With the delay in the condition removal window, developers will now be able to include operations jobs, thereby potentially increasing both the number of jobs and the potential EB-5 capital raise.
Another silver lining for the regional center and project developer is that EB-5 quota retrogression will not delay the availability of investment funds coming into the project. Since quota retrogression does not delay EB-5 petition approval, and since funds flow to the project on or before EB-5 petition approval, the delay affects only the dates that the investor can immigrate to the U.S. It does not delay the availability of EB-5 investment funds to the project.
“Every cloud has a silver lining.” EB-5 quota retrogression, without doubt, is a cloud. Hopefully, the information provided in this blog provides the silver lining.
We will hear directly the perspective of the Chinese migration agents on the impact of the expected quota retrogression at our seminar on February 25, 2015.
October 8th, 2014 by H. Ronald Klasko
I recently completed my semi-annual trip to China. On this trip, I covered three cities, meeting large numbers of migration agents and a variety of wealth advisors, attorneys and Chinese developers.
As always, I came away with a variety of impressions that are not always consistent from visit to visit.
The prevailing sentiment is that the China market is a tough one at this time. There are two prevailing concerns among investors. One is the fear of fraudulent or unsuccessful projects. This is fueled by recent negative publicity (chief among the offending media being Fortune Magazine), as well as recent publicity regarding failed projects, such as the dairy plant in South Dakota. This creates a much more cautious and selective group of investors, who take longer to make decisions than previous generations of investors.
The other complication in the market is the fear, uncertainty and misunderstanding regarding the impending EB-5 quota retrogression for people born in mainland China. This appears to be issue No. 1 among interested Chinese EB-5 investors. The misinformation and misunderstanding that I confronted includes that USCIS will stop accepting I-526 petitions from Chinese nationals and priority dates not being established until I 526 petition approval.
I spent significant amount of time in many meetings and at five seminars explaining the realities of the likely quota retrogression, including the importance of Chinese investors getting their place in line to establish a priority date. I explained that, once quota retrogression sets in, it will likely be longer – and possibly significantly longer – for later filers than for Chinese nationals who file at the present time.
The impact on children is, not surprisingly, also a major issue, with many questions regarding whether it is already too late to protect the age of the child, whether the investor can be changed from the parent to the child and whether the child could be the investor from the beginning, as well as what age is safe for the parents to file to protect the age of the child. All of these issues will be the subject of a separate blog and will be discussed during our upcoming firm seminar.
Exacerbating these problems is the fact that the Chinese real estate market is suffering down times. This is a new phenomenon in China, which has experienced a sustained real estate boom that has created many of the Chinese millionaires and EB-5 investors. However, it is now very difficult for Chinese nationals to sell their homes at anywhere near the peak value.
Unlike six months ago, there does not appear to be a glut of excellent investment projects on the market. Many agents are looking for good projects, especially for launch in 2015 after the Chinese New Year.
As a general rule, agents in China are performing more extensive due diligence and becoming more educated and conservative in choosing projects to promote. Availability of real estate collateral is more important than ever. Increasing amounts of developer equity and decreasing amounts of EB-5 capital make projects more marketable. Agents want more assurances of the availability of the entire capital stack, which assures that the project will move forward. Likelihood of repayment of EB-5 loans is a major focus.
The types of escrow being accepted among the Chinese agent community is evolving. There is far less insistence on investment funds remaining in escrow for each investor until each investor’s I-526 petition is approved. Depending on the project, some agents will accept holdback escrow while others will only accept the release of any investment funds when the project is approved through either an exemplar petition or more often through approval of one or more investors’ I-526 petitions.
Interestingly, many agents are open to – and some prefer – release of investment funds upon I 526 petition filing. This must be accompanied by a credible guarantee from a reputable developer that the investment funds of any denied I-526 investor will be returned upon I-526 petition denial.
The issue of export of currency is hot. The negative publicity regarding the Bank of China’s Yu Hui Tong program has forced the temporary cessation of that program. Many Chinese investors are reverting to the more traditional use of ten or eleven friends and family to transfer currency. Smaller banks and other institutional entities are still engaged in a much smaller scale in the currency export transfer process. The expectation is that the cessation of the Yu Hui Tong program is temporary only.
Interestingly, with the shutdown of the Canadian program and with the Australian program requiring an investment approximately ten times the amount of the U.S. program, the chief competitive program appears to be that of Portugal. Although the amount of investment in Portugal is more than the U.S. program, entry into the EU is perceived as beneficial. But the U.S. is still the first choice for most investors, especially because of the perceived advantages of U.S. educational institutions for the investors’ children.
Things change rapidly in China. The only certain thing is that things will be different when I return six months from now than they are now.
September 11th, 2014 by H. Ronald Klasko
The two core elements of our law firm’s EB-5 practice are well known to our clients and our readership. This includes our EB-5 regional center and project team, which works with regional centers and project developers in structuring EB-5 projects and preparing regional center designation applications, exemplar petitions and templates for EB-5 projects. In doing so, we serve as the quarterback of a team that includes an EB-5 economist, EB-5 business plan writer, and EB-5 corporate and securities lawyer, as well as an escrow agent and often a market study firm.
Our EB-5 team also includes an investor group, which works with investors in preparing lawful source of funds and path of funds documentation, preparing and filing I-526 petitions and assisting with the conditional immigrant visa process.
Less well known are two other aspects of our full service EB-5 practice. Our EB-5 compliance group works with regional centers and project developers “from cradle to grave” in all aspects of EB-5 compliance. This aspect of our practice is critical to regional centers and project developers, as well as to investors, since it relates to the ability of the regional center to remain in compliance with USCIS laws and policies and the ability of project developers to be in a position to meet the needs of investors in the critical condition removal process. A group of lawyers, paralegals and auditors works with our clients to develop the necessary databases relating to investors and projects; obtain access to software or otherwise develop systems to track the flow of investment funds from escrow to the new commercial enterprise and from the new commercial enterprise to the project. We also develop systems to monitor and audit all of the necessary inputs to prove job creation at the I-829 stage, including direct jobs, construction expenditures, revenues, and other inputs included in the economic report. In doing so, we train in house staff and review documentation, often on a monthly basis, with the goal of having all documentation necessary by the time of each investor’s condition removal filing. This ongoing compliance enables us to prepare the condition removal template on a timely basis and without dealing with unanticipated or emergent issues. If the project is not on track or has materially changed from the original business plan, we know of the issues at an early stage and are able to develop alternative legal strategies to maximize the chances of condition removal without problems.
An important part of our EB-5 compliance practice is working with regional centers and project developers to adopt “industry best practices” in areas such as investor relations, staffing, budgeting, project review and monitoring, tracking condition removal dates, record keeping, insurance, conflicts and dealing with agents, among others. We also work with regional centers on preparation for and filing of the annual I-924A compliance report.
Another critical part of the EB-5 process for our regional center and developer clients involves the process of finding agents overseas to market to investors. We made a decision that, while services in this regard are critical to our clients, they are not really legal services. As such, we decided to provide these marketing services through a separate entity of which I am a principal. EB-5 Market Connect is the marketing service available to our clients. It is in the business of matching EB-5 projects with migration agents overseas. Our full-time employee creates an ongoing database of agents based on categories such as preferred size of project; preferred industries; geographical areas preferred; compensation structure; capital stack requirements; types of acceptable escrows; job cushion requirements; timelines for acquiring investors; and other categories. The company prepares a marketing strategy for the project, introduces the project to targeted agents, and negotiates the terms of a contractual arrangement between the client and the agent. More recently, EB-5 Market Connect has expanded its product line to include matching projects with regional centers.
These are two examples of how our law firm’s EB-5 practice has expanded to meet the needs of our clients for full service, life cycle representation. Because of the increasing demand for these services, we will be hosting a seminar focusing on marketing and compliance in the near future. Stay tuned for details.
September 8th, 2014 by H. Ronald Klasko
In recent times, we have published two blogs and one Client Alert on the impending EB-5 quota backlogs for investors born in mainland China. If anyone reading this blog has not read those analyses, they can be found at www.eb5immigration.com.
The purpose of this blog is to highlight what this means to families with children and to discuss the likelihood that the EB-5 quota backlog problem will be resolved by the U.S. Congress.
In order to understand the impact of an EB-5 quota backlog for a Chinese family, it is necessary to make reference to the Child Status Protection Act. The Child Status Protection Act was passed by the U.S. Congress to prevent a child from turning 21 (and therefore becoming ineligible to immigrate with his or her parent) because of processing delays by U.S. Citizenship and Immigration Services. The law “freezes” a child’s age as of the filing date of the I-526 petition during the entire time that the petition is being processed by USCIS. Assuming the quota is current when the EB-5 petition is approved (which means that a visa number is immediately available), the child’s age remains frozen as long as the child takes action to obtain his immigrant visa (green card) within one year.
Since the Child Status Protection Act was not meant to protect against quota backlogs, once the I-526 petition is approved, if a visa number is not available because of the quota backlog, the child’s age is “unfrozen”. This means that during every day of quota unavailability, the child’s age increases by one day beyond the age that the child was when the I-526 petition was filed. For example, if the child was 20 years and 6 months old when the I-526 petition was filed, and if the I-526 petition was pending for one year before it was approved, and if the quota is backlogged upon approval, the day after the approval, the child’s age for immigration purposes would be 20 years 6 months and 1 day.
For quite some time, we have been advising that “18 is the new 21”. This means that we have been advising our Chinese clients to file I-526 petitions before their children turn age 18. Although no one knows for sure how long the waiting list will be, we are hopeful that the waiting list will be less than 3 years long. However, the best advice is to file as soon as possible before the child turns 21.
A curiosity of the Child Status Protection Act is that, in the event of a quota backlog, it is in the investor’s interest for the I-526 petition to be pending as long as possible if the investor has a child. The reason for this is that the child’s age remains frozen for a longer period of time. For the same reason, expediting the approval of an I-526 petition is not only not helpful (because the investor’s place in line is determined by the filing date and not the approval date), but can actually be counterproductive because the child commences the immigration aging process sooner than he otherwise would.
We are frequently asked to assess the chances that the U.S. Congress will take action to increase EB-5 numbers so as to avoid the quota backlog. The chances of this happening in the near future can only be described as unlikely. There are quota backlogs in many categories of family and employment-based immigration, and Congress has taken no action to deal with them. Unless and until the U.S. House of Representatives decides to act on immigration legislation more broadly, it is very unlikely that it will deal with EB-5 quota numbers as a separate legislative action. Although there is some hope that Congress could take this action at the same time as it extends the regional center program in September 2015, the chance of action on the quota is considered very slim in the opinions of most Washington insiders.
So can anything be done? There is one possibility. President Obama is presently considering executive actions that he can take consistent with the present law to alleviate problems in the immigration system. One such action that he is considering is an interpretation of the existing law to exclude the family members from the quota count. In the EB-5 context, this would mean that the 10,000 numbers would go to 10,000 investors rather than to 3,000 to 4,000 investors, with the remainder of the numbers going to family members. Many, including this author, believe that the Immigration and Nationality Act has been interpreted incorrectly for many years in that family members should never have been counted against the worldwide immigration quota. If President Obama takes this executive action, the threat of EB-5 quota backlogs for China would immediately disappear.
Anyone concerned about this issue should contact the White House directly using the following web contact form: http://m.whitehouse.gov/contact/submit-questions-and-comments. In addition, you may contact your Senator or Congressman and request that he or she advocate this action to the White House directly.
August 4th, 2014 by H. Ronald Klasko
Add Fortune Magazine to the list of publications publishing one-sided tirades against the EB-5 program. I would have expected better of Fortune.
Barely paying lip service to the hundreds of successful EB-5 projects creating tens of thousands of jobs, the article focuses on the thankfully aberrational example of the fraudulent Chicago Convention Center case. Focusing more than 80% of the article on a single fraudulent project that was stopped by the SEC 18 months ago is the epitome of old news – trying to make broad generalizations based on one fraudulent operator whose scheme was successfully thwarted by government oversight.
The purpose of this blog is not to defend the EB-5 program, which I have done on many occasions. Rather, the purpose is to correct the incorrect statements in the article, of which there are many.
To state that “the EB-5 industry is virtually unregulated” is a gross inaccuracy. It may have been true some years ago; it is certainly not true today. USCIS now has a vast array of immigration adjudicators, securities lawyers, economists, and other professionals adjudicating the legal qualifications of investment projects and investors’ lawful source of funds. In addition, USCIS has made it clear that it has been cooperating with the SEC for more than two years, and anecdotal evidence has shown that this partnership is more than merely pretextual.
The article states that “deal documents receive no SEC scrutiny and face little due diligence.” In fact, the deal documents are scrutinized by the SEC and face an exceptional level of due diligence by the USCIS and other agencies. USCIS vetting of projects generally goes beyond evaluation of the evidence provided by applicants, and frequently involves examination of the public record.
The article states that regional centers “usually charge a developer about 2% annual interest for at least five years.” I have been involved in many deals between developers and regional centers. While I cannot state that there has never been a regional center that has charged a developer 2% annual interest on all of the immigrant capital, I can state that, in my experience, many regional centers’ fees are significantly lower than that amount.
The article states that a regional center “doesn’t have to report publicly on its performance, identify its principals, or disclose any financial, legal or regulatory problems they have encountered.” This is only partially correct. A regional center does have to file an annual compliance report, which is subject to public disclosure, with USCIS. This report does identify the principals of the regional center, as well as various aspects of its performance. Any changes in ownership must be reported within 30 days. Unfortunately, USCIS has not chosen to make this information easily accessible to the public, requiring instead the filing of a Freedom of Information Act request.
The article states that “Chinese agents typically conduct little due diligence.” Again, while the article may have been correct at some point in the past, it is not at all correct today. In my experience, most Chinese agents now conduct substantial due diligence on projects, often retaining firms like ours to perform the due diligence before they agree to take on the project.
Finally the title references the “Visa-for-Sale Program.” It might be stated correctly that many of the other countries in the world that compete for foreign investment dollars have a visas-for-sale program. Fortunately or unfortunately, the U.S. does not. The U.S. program requires at-risk investments that produce jobs for U.S. workers. This is very different than buying a visa. Rather, it is a classic example of a successful government program that attracts foreign investment dollars in a program that creates employment. One could certainly argue that there is at least as much or more benefit to the U.S. from an immigrant who invests money in the U.S. and creates jobs for U.S. workers as compared to an immigrant who takes a single job offered by a U.S. employer.
There are many aspects of the EB-5 program that could be improved. Unfortunately, Fortune Magazine chose not to address them.
July 22nd, 2014 by H. Ronald Klasko
I recently participated in a national webinar sponsored by NES, the largest EB-5 escrow administrator. The webinar focused on I-829s, and my presentation was entitled “Preparing for the I-829 Bubble”.
I stated at the time, and I will restate now, that the readiness of regional centers and project developers for the I-829 process is one of my most serious concerns for the future of the EB-5 program. It is the reason that our law firm has developed a compliance group within the EB-5 team. But more on that later.
Until very recently, the I-829 process was the province of direct EB-5s and a small number of regional centers which had investors in projects as far back as 2008 or 2009. The group of active regional centers at that time was extremely small and tended to be larger regional centers with in-house staff prepared for the onerous task of auditing and preparing the documentation necessary for the condition removal process.
As more and more regional centers were approved, including smaller and less well-staffed regional centers, the number of projects and investors attached to regional centers that have never gone through the I-829 process have increased. One can only hope that these regional centers and project developers are prepared for the major task that is the condition removal process.
Regional centers have to decide no later than when their first investors are approved how they want to handle this process. Do they want to do everything in-house? Do they want to outsource? Do they want their law firm to handle it? Do they want to hire an audit firm? The time of condition removal is way too late to make these decisions.
It is best if the audit process for the I-829 starts long before any investors are approved. The process of monitoring and documenting the investors’ flow of funds should commence when the investors invest. The process of monitoring construction expenditures should commence whenever the construction commences.
There are two main aspects to the condition removal petition. One is documenting that each investor made the investment and sustained the investment in the new commercial enterprise. Regional centers must have a system to trace the money from the investor to the escrow account to the new commercial enterprise and ultimately to the project. Regional centers and project developers need to either develop their own software to track this information or else buy the software or outsource the process.
Usually the biggest issue is documenting job creation. In most regional center projects, especially loan model projects, there are no direct jobs. Documenting indirect and induced jobs is a matter of documenting inputs to the economic report. For construction jobs, this means documenting construction costs, certain soft construction costs and furniture, fixtures and equipment. For operations jobs, this may mean documenting revenues, occupancy, direct employees or other inputs that the economic report utilized.
If all of the inputs were met or exceeded, there is no need for an additional economic report. However, if any of the inputs were not met, a new economic report may be necessary to determine how many indirect and induced jobs were created given the actual expenditures, revenues, etc. It is not necessary to prove that the jobs were created exactly as planned or that all of the inputs to the economic model were achieved. It is only necessary to prove that the necessary number of jobs were created, even if that is proven on a completely different basis.
We have seen in our practice interesting issues relating to construction timeline. There can be problems if construction is longer or shorter than planned. If the construction was projected to last more than 2 years, which resulted in the ability to count direct construction jobs, and the construction actually lasted less than 2 years, direct construction jobs cannot be counted at the I-829 stage. This can cause a big problem. On the other hand, if the construction timeline was projected to take less than 2 years, and it actually took more than 2 years, direct construction jobs can be counted, which can make up for a shortage of operations jobs. However, if the elongation of the time period was the result of extended periods of time during which little or no construction was taking place, questions might be raised.
I mentioned above that our firm has developed a compliance group to deal with these issues. In some cases, this group provides ongoing support to regional centers and project developers who are performing these functions in house. Other clients choose to outsource this function either to an auditing firm or to our law firm. In either event, our firm stays actively involved because the burden falls on us to actually prepare the I-829 template for all of the investors in the project. It is highly inadvisable for a regional center or a project developer to expect our firm or any other firm to be able to take raw, unreviewed and unmonitored data and turn it into an I-829 template on short notice.
Finally, regional centers and project developers have to understand that the I-829 process is a sequential process, meaning that the 21 to 24 month window opens for each investor on a different date. Investors and their attorneys are very eager to have their I-829 petitions filed as close to the beginning of the 3 month window as possible. The staggered filing dates can actually come in handy in situations where all of the necessary expenditures or revenues or direct jobs have not been created at the time that the first investor must file. However, when that is the case, the data must be monitored investor-by-investor to show which investors got credit for which jobs.
Thorough documentation, advance preparation, and providing regular updates to the law firm and to investors are key components of a plan to ensure that the I-829 bubble does not burst.
May 30th, 2014 by H. Ronald Klasko
Two of my recent blogs have focused on the possibility or likelihood that the EB-5 quota for China will be reached and that Chinese EB-5 investors will have a lengthy wait for a visa number that will allow them to enter the U.S. as conditional immigrants. This blog will focus on what can be done about that.
The most obvious answer is that Congress, which created the quota, can change the quota. This could be done by increasing the EB-5 quota above 10,000 numbers; by removing spouses and children from the quota; or by eliminating the per country limits. Unfortunately, today in Washington, none of these legislative options has any realistic chance of success outside of passage by Congress of comprehensive immigration reform. If you have at all followed the immigration debate in Washington, the chances of comprehensive immigration reform passing both Houses of Congress in the near future are exceedingly slim.
If Congress officially pronounces comprehensive immigration reform dead, there is then a possibility of piecemeal immigration legislation, including EB-5. If that were to happen, the issue of the EB-5 quota would be front and center. However, many members of Congress in key positions are unlikely to vote to increase EB-5 numbers unless at the same time voting to decrease numbers in other immigration categories. Any other category to be reduced likely has a constituency advocating for an increase in numbers and certainly fighting hard to make sure that no numbers are taken away.
In short, the legislative solution is not promising for the near or mid-term.
So what other option exists? The Administration, including USCIS or the Department of State, does not have authority to increase EB-5 numbers above 10,000. However, what if there were a way for the Administration to increase the number of investors while acting completely consistent with Congress’ 10,000 limitation? There is a way (and I give credit to my colleague Tammy Fox-Isicoff for suggesting this solution to me).
The answer lies in a review of the Immigration and Nationality Act. I suggest that a review of the statute reveals that Congress intended the 10,000 number to mean 10,000 investors. Logically, Congress decided on a number of investors who should be allowed to immigrate to the U.S. each year, which number should not be dependent on whether the average investor has one child or five children. But logic is not determinative – the language of the statute is.
Happily, the language of the statute is consistent with logic.
Section 203(b)(5) sets the worldwide quota for “qualified immigrants” seeking to enter the U.S. to invest in a new commercial enterprise. Spouses and children are not seeking to invest and, I suggest, should not be included in the 10,000 count. The relevant section of the law relating to spouses and children is Section 203(d). This is the section that is often cited to provide support for allocating most of the 10,000 numbers to spouses and children. However, that is not what it states. It states that spouses and children are entitled to the same “status” and “order of consideration” as the principal investor. The “status” referred to is the status of permanent resident. The “order of consideration” means that spouses and children should be able to immigrate at the same time as the principal. However, nothing in this language states or implies that separate visa numbers must be made available to the spouses and children.
In fact, the present system violates the statutory requirement of Section 203(d). Spouses and children do not necessarily have the same “order of consideration” as the principal investor. For example, if the principal investor obtains conditional permanent resident status when a quota number is available, the spouse or child who wants to immigrate subsequently is unable to join the principal investor if the quota has subsequently retrogressed. This is contrary to both the language and the intent of the law.
So what are the chances that this creative argument could prevail? There are two chances. One is that the Administration, which is looking for solutions to solve immigration problems that do not require legislative action, could implement this change unilaterally. Needless to say, that would take a lot of political courage. Efforts are presently underway to try to convince the Administration to take such action.
Absent administrative action, the other solution would be litigation. Although litigation is always difficult and the law could be interpreted differently, a purely legal issue such as this would be perfectly appropriate for a court’s review.
Impossible? I have always been a believer in creative solutions to complex problems. This is clearly a complex problem begging for a creative solution.
April 10th, 2014 by H. Ronald Klasko
Sometimes you have to step back. I usually publish blogs with my interpretations of EB-5 legal issues, critiques of EB-5 policies and my perspectives on EB-5 practice. I don’t publish blogs on what our EB-5 Team does day in and day out. Today is an exception. Our EB-5 Team at the Klasko firm deserves some credit in print.
I just returned from an EB-5 summit in Shanghai where I was asked to deliver opening remarks providing my perspectives on the past year. Although I rarely have time to think about it, when I had to put together the remarks, I realized that it has truly been an extraordinary year for our EB 5 practice.
I started my remarks stating that I love what I do. I love it because I believe we are making a difference, and helping to achieve the purposes of the EB-5 program, which was intended to promote job creation and an improved economy in the U.S. Within the past year, our firm’s Investor Team filed almost 400 EB-5 petitions for investors and helped hundreds of investors and their families successfully complete their immigration to the U.S. Our EB-5 Project Team performed the EB-5 immigration legal services for our developer clients for projects that resulted in the infusion of almost $1 billion of EB-5 capital into the U.S. economy. These projects include, among other things, hotels, casinos, condominiums, entertainment complexes, office buildings, retail projects, residential projects, and even the development of an entire neighborhood. The projects that our EB-5 Team have been involved in over the past year have added tens of thousands of jobs to the U.S. economy, and resulted in more than 500 approved I-526 petitions.
In addition, we have obtained regional center approvals for over 20 new regional centers within the past year. These regional centers encompass territories covering more than fifteen states, and will be a source of new jobs, new capital infusion and new investor immigrants in the coming years. The regional centers include a public-private partnership, a regional center approved based on a tenant occupancy model and a regional center encompassing two entire states. The projects on which the regional center approvals were based included a raceway, a cargo container transport terminal, check cashing stores, education and child care facilities, as well as the more traditional hotels, restaurants, shopping malls, charter schools, condominiums, office buildings, mixed-use facilities and residential projects.
So while future blogs will again return to discussions of cutting-edge legal issues and new developments in EB-5 law and policy, I wanted to devote one blog to stepping back and reflecting on our day-to-day accomplishments for clients and the impact that they have had on so many development projects, on the U.S. economy and on investors and their families. There is a reason that I, and our firm’s EB-5 Team, love what we do.
March 20th, 2014 by H. Ronald Klasko
In my last blog, I delineated my thoughts on the most important insights to be gleaned from the February 26 stakeholders meeting. This blog will focus on some of the most important issues that went unanswered.
For at least the third time during the period of the last two years, USCIS stated that it has not formulated its position on a critical issue that arises on many EB-5 projects. What if a developer wants to refinance after the completion of construction with the result being that the loan to the new commercial enterprise is repaid? What if the project is sold with the same result? Let’s assume that the NCE either uses the money to invest in another project or holds the money. In either event, no money is released from the NCE to the investors until they remove conditions. USCIS has again stated that it is “currently reviewing” this issue.
In my opinion, this event should not prejudice the EB-5 investors for reasons of both law and policy. From a legal perspective, the key issues for condition removal are whether the investment has been sustained and whether the jobs have been created. The investment that must be sustained is the investment in the new commercial enterprise. In these examples, the investment in the NCE is sustained. The jobs that must be created have presumably all been created (especially assuming the jobs in question are construction jobs). From a policy perspective, developers should not be precluded from making normal business decisions after all jobs have been created. USCIS should not be creating policies that result in the potential removal of investors who sustained their investments, especially where the investments have accomplished their job creation purposes.
Another issue that USCIS stopped just short of answering is the question of whether there is any temporal limitation on the use of EB-5 money to replace bridge financing or equity. USCIS restated its policy as articulated in the May 30, 2013 Policy Memorandum that EB-5 money can get credit for job creation if it is issued to replace debt or equity that is temporary in nature. At one point during the call, USCIS seemed to indicate that it does not matter how late the EB-5 money comes in to replace the bridge money, even if the construction is completed by that time. However, on a follow-up question, USCIS seemed to backtrack, indicating that USCIS will decide if additional clarification or guidance is needed to deal with a scenario where all of the jobs are created before any EB-5 money comes in. Especially with the increasingly lengthy processing time for I-526 petitions, it will be more and more frequent for EB-5 money to come into projects to replace bridge money after construction is completed. USCIS should state clearly and unequivocally that there is no time limitation as long as the EB-5 money is replacing temporary debt or equity.
USCIS responded to a question whether there is any violation of the “at risk” or “no guaranteed redemption” requirements if a developer or general partner – but not the investor – has the option to redeem the investment at a fixed amount. It appears to me that this question is appropriate for a direct answer – that this scenario creates no guaranteed redemption or at risk problem. Unfortunately, USCIS did not provide a direct answer to the question. USCIS stated that it would review the evidence to determine if there is a risk of loss and a chance for gain. This is certainly a true statement, but it does not answer the question.
Finally, USCIS confirmed that geographical expansion of a regional center must be to an area “contiguous” to the already-approved area. However, USCIS did not confirm how wide the geographical area expansion can be other than to state that it cannot extend from New York to California. USCIS should confirm that expansion can be to an area that may be a significant distance from the already approved area as long as the expansion includes all contiguous areas necessary to connect the new area with the original area.
Hopefully, USCIS will address these and other critical issues at the next stakeholders meeting scheduled to be held in late spring or early summer.