One of the largest development projects in the United States trying to take advantage of the EB-5 Program and foreign investment is Brooklyn Navy Yard in the Atlantic Yards development, a multi-phase project of the New York City Regional Center.
Controversy has dogged the development since its announcement.
Barclays Center is to be the new home of the New Jersey Nets, which would be renamed the Brooklyn Nets.
Two of the most dogged reporters covering the project are Matt Chaban of the New York Observer, and Norman Oder, a blogger who announced last September that he was quitting his day job to write a book about Atlantic Yards.
See: http://www.observer.com/site-search?keys=Atlantic+Yards&sa.x=6&sa.y=15
and
http://www.huffingtonpost.com/norman-oder/reuters-nails-lies-by-pro_b_801070.html
Wednesday, January 26, 2011
Sunday, December 5, 2010
Engagement or Dis-Engagement?
U.S. Citizenship and Immigration Services (USCIS) has an Office of Public Engagement. According to USCIS, "[t]he Office of Public Engagement (OPE) coordinates and directs agency-wide dialogue with external stakeholders. OPE actively collaborates with, and seeks feedback from, stakeholders to inform USCIS policies, priorities, and organizational performance reviews. OPE facilitates open and transparent communication between the Agency, external stakeholders, and the customers they represent by sharing feedback, working with Agency leadership, coordinating follow-up, and reporting back to stakeholders. The Office also works closely with other USCIS offices to support the implementation of highly visible outreach programs and public education initiatives."
OPE has three divisions: the Community Relations and Engagement Division, the Intergovernmental Affairs Division, and the Protocol Division. The first and third divisions are those with which I have had the most "engagement". I must say that Community Relations and Engagement is trying. I have been to a couple of community relations events and it appears USCIS district offices are reaching out to the general public to offer better information about what it does.
What is not working are the stakeholders' "engagements" conducted by the Protocol Division, specifically with reference to a little-known job-creation program that could provide badly needed jobs to out-of-work Americans. As I write this, the national unemployment rate has jumped to 9.8 percent!
Each time USCIS has had an opportunity to choose a way to change the EB-5 Program (as this foreign investor immigrant visa program is called), either via memo or via request for evidence, it has always selected the most restrictive change, thus strangling to death the only immigration-related visa program Congress seems to like and support.
Today, for example, USCIS is misapplying its own regulations and guidance and is denying about one-third of the Form I-829 investor petitions to remove conditions on residence (for the permanent green card). This is not sustainable and will be the death of the EB-5 Program.
I have a recommendation. Toss the word "engagement" and use the word "conversation". "Engagement" has a very military meaning to me as someone with 12 years of prior service in the Army. I prefer the word "conversation." Then let's have a few before this important (and unique) job-creating investor visa program goes down the tubes.
OPE has three divisions: the Community Relations and Engagement Division, the Intergovernmental Affairs Division, and the Protocol Division. The first and third divisions are those with which I have had the most "engagement". I must say that Community Relations and Engagement is trying. I have been to a couple of community relations events and it appears USCIS district offices are reaching out to the general public to offer better information about what it does.
What is not working are the stakeholders' "engagements" conducted by the Protocol Division, specifically with reference to a little-known job-creation program that could provide badly needed jobs to out-of-work Americans. As I write this, the national unemployment rate has jumped to 9.8 percent!
Each time USCIS has had an opportunity to choose a way to change the EB-5 Program (as this foreign investor immigrant visa program is called), either via memo or via request for evidence, it has always selected the most restrictive change, thus strangling to death the only immigration-related visa program Congress seems to like and support.
Today, for example, USCIS is misapplying its own regulations and guidance and is denying about one-third of the Form I-829 investor petitions to remove conditions on residence (for the permanent green card). This is not sustainable and will be the death of the EB-5 Program.
I have a recommendation. Toss the word "engagement" and use the word "conversation". "Engagement" has a very military meaning to me as someone with 12 years of prior service in the Army. I prefer the word "conversation." Then let's have a few before this important (and unique) job-creating investor visa program goes down the tubes.
Thursday, October 28, 2010
First time USCIS has halted an EB-5 regional center
By Brooke Edwards of the Victor Valley Daily Press
VICTORVILLE, Calif. • The federal government has terminated Victorville’s foreign investor program, ending the city’s hopes to raise tens of millions of dollars for projects at Southern California Logistics Airport.
It’s the first time U.S. Citizenship and Immigration Services has ever terminated an EB-5 program, agency spokeswoman Mariana Gitmore said by phone Tuesday. She said Victorville hadn’t been able to demonstrate that it meets the criteria to raise funds through the federal program, despite repeated requests for more information.
USCIS approved Victorville’s application as an EB-5 Regional Center in June 2009, allowing the city to solicit $500,000 loans from foreign citizens so long as that money helps create 10 local jobs. In exchange, the foreign lenders are put on the fast track to getting U.S. visas.
USCIS sent the city a rare notice of intent to terminate its EB-5 program in May, raising questions about whether Victorville had misrepresented itself in marketing the program and if projects such as the stalled Victorville 2 power plant are still viable.
The Daily Press has regularly been asking for updates on the status of the program. Most recently, the Daily Press sent an e-mail Monday morning asking whether Victorville had heard back from USCIS. City spokeswoman Yvonne Hester deferred to City Attorney Andre de Bortnowsky, who still hadn’t responded to requests for comment as of Tuesday afternoon.
USCIS sent its final termination notice Oct. 20.
The website www.vveb5.com remained active Tuesday afternoon, still touting Victorville’s EB-5 program even though USCIS ordered any advertisement to stop with its first notice back in May.
VICTORVILLE, Calif. • The federal government has terminated Victorville’s foreign investor program, ending the city’s hopes to raise tens of millions of dollars for projects at Southern California Logistics Airport.
It’s the first time U.S. Citizenship and Immigration Services has ever terminated an EB-5 program, agency spokeswoman Mariana Gitmore said by phone Tuesday. She said Victorville hadn’t been able to demonstrate that it meets the criteria to raise funds through the federal program, despite repeated requests for more information.
USCIS approved Victorville’s application as an EB-5 Regional Center in June 2009, allowing the city to solicit $500,000 loans from foreign citizens so long as that money helps create 10 local jobs. In exchange, the foreign lenders are put on the fast track to getting U.S. visas.
USCIS sent the city a rare notice of intent to terminate its EB-5 program in May, raising questions about whether Victorville had misrepresented itself in marketing the program and if projects such as the stalled Victorville 2 power plant are still viable.
The Daily Press has regularly been asking for updates on the status of the program. Most recently, the Daily Press sent an e-mail Monday morning asking whether Victorville had heard back from USCIS. City spokeswoman Yvonne Hester deferred to City Attorney Andre de Bortnowsky, who still hadn’t responded to requests for comment as of Tuesday afternoon.
USCIS sent its final termination notice Oct. 20.
The website www.vveb5.com remained active Tuesday afternoon, still touting Victorville’s EB-5 program even though USCIS ordered any advertisement to stop with its first notice back in May.
Wednesday, September 1, 2010
Please come to Boston
The second EB-5 conference presented by the American Immigration Lawyers Association was another huge success. More than 425 people attended the August 27 conference, which is a 30 percent increase over the first conference in San Francisco last October 19.
The panel discussions were very good. It became apparent that the problems the EB-5 Program faces are in some part being created by the federal agency charged with overseeing it, USCIS, and in part by regional centers not playing by the rules.
In large measure, however, it is USCIS that is openly hostile to the EB-5 Program and is not interested in Congress's intent that the EB-5 Program become a job-creating engine. It still sputters, and for reasons that only USCIS knows.
Boston was a great setting for the conference and the Seaport Hotel was a fine facility for this size conference.
The panel discussions were very good. It became apparent that the problems the EB-5 Program faces are in some part being created by the federal agency charged with overseeing it, USCIS, and in part by regional centers not playing by the rules.
In large measure, however, it is USCIS that is openly hostile to the EB-5 Program and is not interested in Congress's intent that the EB-5 Program become a job-creating engine. It still sputters, and for reasons that only USCIS knows.
Boston was a great setting for the conference and the Seaport Hotel was a fine facility for this size conference.
Thursday, August 12, 2010
EB-5 investors' FAQ
Q. When was the regional center approved by USCIS, and has it been audited by USCIS?
A. Regional centers that have more recently been approved may have little or no track record of successful immigrant petitions or of job creation. Some regional centers have become inactive, and some have not been audited. Some regional centers that have been audited have seen their approval revoked.
Q. Is the regional center affiliated with any government entity?
A. It can be, but you should look carefully. Does the government entity that has this affiliation have any track record in job creation or economic development? The government entity may have some or no experience in this regard.
Q. How many years of experience do the general partner or principal in the investment project have in working with immigrant investor programs?
A. Although some project developers may have experience with the EB-5 Program, most will not. Do not conflate the regional center with the investment project, if the two are separate and distinct. Such investors invest "through" the regional center and into the job-creating entity (the investment project). Some of the general partners or regional center creators have little or no experience with the EB-5 Program. Others have extensive experience both in the United States and with investor immigrant programs in other countries.
Q. Should I ask how many years of experience the principals involved in the regional center have in job creation?
A. Very good question, and you should ask it. The EB-5 Program is very young, but some of the regional center principals have been involved in job creation and economic development for a long time. Regional center principals who have such experience should be considered in your plan to invest.
Q. Does the regional center investment include direct job creation, indirect job creation, or both?
A. Most regional centers include direct and indirect and induced job creation. A safer alternative is an investment project that relies upon direct job creation only, with a plan to produce an economic impact study showing indirect and induced job creation if needed at the I-829 (removal of conditions) stage.
Q. Can I ask about the regional center's track record -- how many I-526 petitions approved/denied, how many I-829 petitions approved/denied?
A. You would be foolish not to ask these important questions. If the regional center will not provide this information, do not pursue an investment through that regional center. The safest regional centers at this point in time are those that have I-829 approvals, but there are very few of these.
Q. Do I have to deposit or pay a fee to get a copy of the securities offering?
A. Some regional centers charge a deposi, which is applied to the regional center's administrative services fee if you invest. Some regional centers charge a flat fee to receive a copy of the securities offering. Other regional centers charge no fee for the privilege.
Q. What amount do I have to pay to invest?
A. In most regional centers, the investment amount is $500,000. Regional centers generally charge an administrative services fee of from $25,000 to $60,000. America's Center for Foreign Investment typically charges the investor $30,000 for five years of EB-5 compliance services.
Q. Do I make a payment into an escrow account? Is the investment amount refunded if the I-526 is not approved?
A. Most regional centers use escrow accounts to deposit the investor's $500,000 and the regional center's administrative services fee. The provision of an escrow account with the money remaining in escrow until the I-526 petition is approved is a critical security feature for the investor.
Q. Can I redeem my investment following conditions removal?
A. We certainly hope so. With some regional centers, this is fairly certain; with others it is not. Although third-party indemnity insurance contracts are permitted by USCIS, there is that nagging doubt that such contracts may not meet the regulatory “at risk” requirement.
Q. What provisions are made regarding the security of the investment?
A. The federal law governing the EB-5 Program states that your investment is "at risk". You should perform due diligence regarding the likely security of your investment. Professional financial advisors can help you.
Q. What use is made of the investor’s funds? What is the type or types of projects?
A. Regional center investments may involve commercial building projects, condominiums, hotels, film studios, heavy and light manufacturers, warehouses, real estate, and other types of projects.
Q. What form of investment should I invest in? Are there different business models out there?
A. Yes. The most common investment vehicle is a limited partnership that loans money to a job-creating entity. Other forms of investment structure include limited liability companies that may be a partnership, equity investments, venture capital funds, and real estate investment trusts (REITs). These types of projects vary from regional center to regional center.
Q. What has been the rate of return to investors historically?
A. It varies. Usually 2 to 5 percent. Regional centers promising outrageously high returns -- such as 15 to 30 percent -- are probably investments that are too good to be true. Then again, an investment project offering a 2 percent return might be a much safer and more secure investment. Investors may need to balance the importance of immigration track record, security of the investment and rate of return on the investment project's structure For example, a project may have more than a few ways to take you out (i.e., return your $500,000), thus increasing the likelihood that you will get your money back.
Q. Does the regional center provide regular reporting of the status of the investment to the investors, and at what intervals?
A. Yes, the best ones do. You should expect regular reports with an update on the investment project, job creation and new investment opportunities, at least quarterly.
Q. Once I have invested my money, how do I monitor job creation? What steps are taken if the requisite job creation has not occurred?
A. The investor should look for an investment project with detailed job reporting on a regular basis and with a provision that failure to create the required jobs establishes a basis for reinvestment of the proceeds in another project, so as to keep the investor’s immigration and investment process on schedule.
Q. Do you have a lawyer I have to use?
A. Some regional centers require the investor to use the regional center’s lawyer to file the investor petition, and others do not. The regional center’s immigration attorney may provide review and counseling to an investor’s lawyer. A general counsel of a regional center, such as myself, will work closely with the investor's lawyer to insure EB-5 compliance. A few regional centers do this.
Q. Does the regional center’s attorney contact the foreign national directly, or can the referring attorney maintain all contact with the foreign national?
A. With some regional centers, the lawyer deals directly with the investors. With others, even if the regional center’s lawyer handles the investor petition, the lawyer may deal only with the referring lawyer at the referring lawyer's request.
A. Regional centers that have more recently been approved may have little or no track record of successful immigrant petitions or of job creation. Some regional centers have become inactive, and some have not been audited. Some regional centers that have been audited have seen their approval revoked.
Q. Is the regional center affiliated with any government entity?
A. It can be, but you should look carefully. Does the government entity that has this affiliation have any track record in job creation or economic development? The government entity may have some or no experience in this regard.
Q. How many years of experience do the general partner or principal in the investment project have in working with immigrant investor programs?
A. Although some project developers may have experience with the EB-5 Program, most will not. Do not conflate the regional center with the investment project, if the two are separate and distinct. Such investors invest "through" the regional center and into the job-creating entity (the investment project). Some of the general partners or regional center creators have little or no experience with the EB-5 Program. Others have extensive experience both in the United States and with investor immigrant programs in other countries.
Q. Should I ask how many years of experience the principals involved in the regional center have in job creation?
A. Very good question, and you should ask it. The EB-5 Program is very young, but some of the regional center principals have been involved in job creation and economic development for a long time. Regional center principals who have such experience should be considered in your plan to invest.
Q. Does the regional center investment include direct job creation, indirect job creation, or both?
A. Most regional centers include direct and indirect and induced job creation. A safer alternative is an investment project that relies upon direct job creation only, with a plan to produce an economic impact study showing indirect and induced job creation if needed at the I-829 (removal of conditions) stage.
Q. Can I ask about the regional center's track record -- how many I-526 petitions approved/denied, how many I-829 petitions approved/denied?
A. You would be foolish not to ask these important questions. If the regional center will not provide this information, do not pursue an investment through that regional center. The safest regional centers at this point in time are those that have I-829 approvals, but there are very few of these.
Q. Do I have to deposit or pay a fee to get a copy of the securities offering?
A. Some regional centers charge a deposi, which is applied to the regional center's administrative services fee if you invest. Some regional centers charge a flat fee to receive a copy of the securities offering. Other regional centers charge no fee for the privilege.
Q. What amount do I have to pay to invest?
A. In most regional centers, the investment amount is $500,000. Regional centers generally charge an administrative services fee of from $25,000 to $60,000. America's Center for Foreign Investment typically charges the investor $30,000 for five years of EB-5 compliance services.
Q. Do I make a payment into an escrow account? Is the investment amount refunded if the I-526 is not approved?
A. Most regional centers use escrow accounts to deposit the investor's $500,000 and the regional center's administrative services fee. The provision of an escrow account with the money remaining in escrow until the I-526 petition is approved is a critical security feature for the investor.
Q. Can I redeem my investment following conditions removal?
A. We certainly hope so. With some regional centers, this is fairly certain; with others it is not. Although third-party indemnity insurance contracts are permitted by USCIS, there is that nagging doubt that such contracts may not meet the regulatory “at risk” requirement.
Q. What provisions are made regarding the security of the investment?
A. The federal law governing the EB-5 Program states that your investment is "at risk". You should perform due diligence regarding the likely security of your investment. Professional financial advisors can help you.
Q. What use is made of the investor’s funds? What is the type or types of projects?
A. Regional center investments may involve commercial building projects, condominiums, hotels, film studios, heavy and light manufacturers, warehouses, real estate, and other types of projects.
Q. What form of investment should I invest in? Are there different business models out there?
A. Yes. The most common investment vehicle is a limited partnership that loans money to a job-creating entity. Other forms of investment structure include limited liability companies that may be a partnership, equity investments, venture capital funds, and real estate investment trusts (REITs). These types of projects vary from regional center to regional center.
Q. What has been the rate of return to investors historically?
A. It varies. Usually 2 to 5 percent. Regional centers promising outrageously high returns -- such as 15 to 30 percent -- are probably investments that are too good to be true. Then again, an investment project offering a 2 percent return might be a much safer and more secure investment. Investors may need to balance the importance of immigration track record, security of the investment and rate of return on the investment project's structure For example, a project may have more than a few ways to take you out (i.e., return your $500,000), thus increasing the likelihood that you will get your money back.
Q. Does the regional center provide regular reporting of the status of the investment to the investors, and at what intervals?
A. Yes, the best ones do. You should expect regular reports with an update on the investment project, job creation and new investment opportunities, at least quarterly.
Q. Once I have invested my money, how do I monitor job creation? What steps are taken if the requisite job creation has not occurred?
A. The investor should look for an investment project with detailed job reporting on a regular basis and with a provision that failure to create the required jobs establishes a basis for reinvestment of the proceeds in another project, so as to keep the investor’s immigration and investment process on schedule.
Q. Do you have a lawyer I have to use?
A. Some regional centers require the investor to use the regional center’s lawyer to file the investor petition, and others do not. The regional center’s immigration attorney may provide review and counseling to an investor’s lawyer. A general counsel of a regional center, such as myself, will work closely with the investor's lawyer to insure EB-5 compliance. A few regional centers do this.
Q. Does the regional center’s attorney contact the foreign national directly, or can the referring attorney maintain all contact with the foreign national?
A. With some regional centers, the lawyer deals directly with the investors. With others, even if the regional center’s lawyer handles the investor petition, the lawyer may deal only with the referring lawyer at the referring lawyer's request.
Tuesday, August 10, 2010
Regional Center applicant calling
I guess I've heard them all.
Q. "I've practiced immigration law for awhile. How do I do an application for a regional center?"
A. How much time and money have you got?
Q. "Do you have a regional center application I could study?"
A. No.
Q. "Would you please mail a copy of your regional center application to me?"
A. No.
Q. "There's nothing about how to do this anywhere is there?"
A. Not much.
Q. "When I put my regional center application together, where do I send it?"
A. California Service Center, U.S. Citizenship and Immigration Services, Laguna Niguel, CA
Q. "How long does it take to get a regional center application approved?"
A. Plan on six months. With proper exercise of local and state support, maybe four or five.
Q. "Do you have a regional center application I could take a look at?"
A. No.
Q. "Well, that's a bit more than I wanted to spend. Are you sure it's that expensive to do a regional center application?"
A. Yes.
Q. "Why do I have to hire an economist?"
A. Tell me you didn't just ask that question.
Q. "Why do I need a lawyer. Can't I do this myself?"
A. Yes.
Q. "We want to set up a regional center for our condo project. Do you do that?"
A. Yes, but not for condo projects. Call me in three years.
Q. "What kind of regional center do I want to set up?"
A. There are several business models: (1) REIT; (2) loan investment vehicle, usually a limited partnership; (3) equity investment vehicle, a limited partnership, limited liability company, or corporation; (4) venture capital fund; (5) EB-5 compliance consulting service company.
Q. "Where do I find investors?"
A. You will have to spend a considerable amount of your time and money to find investors. You might look in China, South Korea, and India.
Q. "Do I need to do a background check on investors?"
A. No, but it might be prudent to do so. Once source for this is ChoicePoint.
Q. "I've practiced immigration law for awhile. How do I do an application for a regional center?"
A. How much time and money have you got?
Q. "Do you have a regional center application I could study?"
A. No.
Q. "Would you please mail a copy of your regional center application to me?"
A. No.
Q. "There's nothing about how to do this anywhere is there?"
A. Not much.
Q. "When I put my regional center application together, where do I send it?"
A. California Service Center, U.S. Citizenship and Immigration Services, Laguna Niguel, CA
Q. "How long does it take to get a regional center application approved?"
A. Plan on six months. With proper exercise of local and state support, maybe four or five.
Q. "Do you have a regional center application I could take a look at?"
A. No.
Q. "Well, that's a bit more than I wanted to spend. Are you sure it's that expensive to do a regional center application?"
A. Yes.
Q. "Why do I have to hire an economist?"
A. Tell me you didn't just ask that question.
Q. "Why do I need a lawyer. Can't I do this myself?"
A. Yes.
Q. "We want to set up a regional center for our condo project. Do you do that?"
A. Yes, but not for condo projects. Call me in three years.
Q. "What kind of regional center do I want to set up?"
A. There are several business models: (1) REIT; (2) loan investment vehicle, usually a limited partnership; (3) equity investment vehicle, a limited partnership, limited liability company, or corporation; (4) venture capital fund; (5) EB-5 compliance consulting service company.
Q. "Where do I find investors?"
A. You will have to spend a considerable amount of your time and money to find investors. You might look in China, South Korea, and India.
Q. "Do I need to do a background check on investors?"
A. No, but it might be prudent to do so. Once source for this is ChoicePoint.
Thursday, July 15, 2010
SEC nixes finders' fees
What was, essentially, a blow to EB-5 project marketing efforts -- in the United States and overseas -- was issued by the Securities and Exchange Commission (SEC) in the form of denial of a request for a "no-action" letter.
Brumberg Mackey & Wall, PLC, (BMW) sought to assist a client in raising money for its business interests, and asked whether it could take a percentage of funds raised without registering with the SEC as a broker or deal.
The SEC said no. "[T]he Staff believes that the receipt of compensation directly tied to successful investments in [the client's] securities by investors introduced to [the client] by BMW (i.e., transaction-based compensation) would give BMW a "salesman's stake" in the proposed transactions and would create heightened incentive for BMW to engage in sales efforts. Accordingly, the Staff believes that your proposed activities would require broker-dealer registration."
Brumberg Mackey & Wall, PLC, (BMW) sought to assist a client in raising money for its business interests, and asked whether it could take a percentage of funds raised without registering with the SEC as a broker or deal.
The SEC said no. "[T]he Staff believes that the receipt of compensation directly tied to successful investments in [the client's] securities by investors introduced to [the client] by BMW (i.e., transaction-based compensation) would give BMW a "salesman's stake" in the proposed transactions and would create heightened incentive for BMW to engage in sales efforts. Accordingly, the Staff believes that your proposed activities would require broker-dealer registration."
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