Role of the United States Securities and Exchange Commission in the EB-5 Program. Current Trends and Suggestions for Future Guidance

The EB-5 industry involves either (i) a direct investment in a project company or (ii) the formation of a new commercial enterprise entity (herein referred to as the “NCE”) in order to make (A) a direct investment in the job creation entity (“JCE”) or (B) a loan to the JCE.  In each case, the intent is to create jobs to comply with the requirements of United States Citizens and Immigration Services (“USCIS”).  In connection therewith, beginning in 2012, the Securities and Exchange Commission (“SEC”) has taken a far more active role in cooperating with USCIS to ensure compliance with the anti-fraud provisions of the various securities laws that regulate the sale of United States securities, even if the sale is conducted offshore pursuant to a Regulation S exemption under the Securities Act of 1933, as amended (the “Securities Act”).

Since 2012, the SEC has enhanced its engagement in the EB-5 industry by not only endeavoring to police fraud cases of which it is made aware, such as the Chicago Convention Center case and other cases thereafter, but also providing the following enforcement action and guidance in connection with the EB-5 industry:

  1. Announcing training of USCIS examiners to identify fraud and other discrepancies in EB‑5 offerings.
  2. As noted above, policing fraud when the SEC is made aware of same and taking immediate injunctive action where and when necessary in order to protect the interests of foreign investors based upon their jurisdiction with respect to the sale of United States securities.
  3. Providing some degree of guidance to the EB‑5 industry with respect to compliance with the Investment Company Act of 1940, as amended and issues involving compliance with exemptions and exclusions from registering as an investment advisor or broker-dealer under the Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder.
  4. Taking actions against false advertising that implies the U.S. government or its agencies are sponsoring or endorsing EB‑5 projects when such is not the case.
  5. Conducting investigations on matters where the sale of securities may have been made through the use of the instrumentality of United States commerce by parties not registered as investment advisors or broker-dealers.

The SEC has four (4) main Divisions which are relevant to securities issues related to the EB‑5 PROGRAM:

  1. Division of Corporate Finance (handles general corporate issues, including disclosure requirements).
  2. Division of Investment Management (Handles 1940 Act and Investment Advisor issues).
  3. Division of Trading and Markets (Handles broker-dealer issues).
  4. Division of Enforcement (litigation and investigating arm of the SEC).

These Divisions provide continuous guidance to the public as to generally what their position is on specific EB‑5 related securities questions that may arise, although generally the SEC will not provide written direction or final advice on various issues.

The SEC and EB‑5 industry in general have publicized the fact that (i) the offering of securities under the EB‑5 program structure in either the JCE or NCE involves the sale of a security under applicable securities laws (including, without limitation, the anti-fraud provisions under Section 106 of the Securities Act, and (ii) as a result, the SEC will take immediate action if there is any potential violation related thereto.  Such publicity has created a sense of comfort to the EB‑5 industry as a whole, including foreign migration agents, marketing agents as well as EB‑5 investors in general.  The Chicago Convention Center case became public information not only in the United States, but also in China in particular where there was a tremendous concern about the protection of the EB‑5 investors and how quickly the monies they invested would be returned.  The SEC took very quick action and, based upon pressure from the EB‑5 industry, correctly initiated actions that caused the return of EB‑5 investor capital within a relatively short period of time (the injunction case was filed in February 2013 and funds were being returned to investors approximately three to four months thereafter).  The SEC went further in the Chicago Convention Center case to negotiate a settlement with the promoter, whereby the EB‑5 investors’ administrative fees that were not escrowed would be accounted for and substantially returned to the EB‑5 investors, although this still resulted in the EB-5 investors losing significant time to process a new EB-5 visa petition, including certain children that “aged out” as a result of the process.

It is noteworthy that the EB‑5 industry that represents approximately $2 Billion to $3 Billion of annual capital raising is a fraction (well less than 1%) of the total annual U.S. Securities private placement funding transactions.  Accordingly, the Division of SEC Enforcement prioritizes its resources and, therefore, only concentrates on the following types of matters:

  1. Cases involving outright fraud.
  2. Cases involving discrepancies in escrow arrangements.
  3. Cases involving false advertising, including the references that certain projects have governmental approvals where the public is being misled.
  4. Investigations involving entities and individuals that may be acting as unlicensed investment advisors and broker-dealers by conducting sales activities from the United States or using the instrumentality of interstate commerce related thereto.

As a proposal going forward, we believe that the SEC should continue to update its policies as follows:

  1. Continue policing fraud, false advertising and other bad practices, including investigations related to the clear violation of broker-dealer and investment advisors regulations.
  2. Clarify the Investment Company Act of 1940 with respect to whether certain transactions are either within the 1940 Act or need to claim an exemption thereunder.  There are basically only two realistic exemptions under the 1940 Act;
    • 100 or less investors in the NCE or JCE and
    • the so-called 3(5)(C) exemption involving real estate backed collateral.

The SEC has taken the verbal position that forming an NCE and issuing securities thereunder involves registration under the 1940 Act unless an appropriate exemption is claimed thereunder.  We believe that the 1940 Act was never intended to encompass such a program since, in effect, there is really no trading in securities; rather, the EB‑5 industry dictates that a separate entity is formed to issue one class of securities that makes a loan to a project where there is no trading in securities.  Some SEC staff attorneys in other  divisions have expressed concern about the applicability of a 1940 Act to the EB‑5 Program.  Furthermore, there needs to be clarification between the NCE debt model compared to the JCE direct investment model wherein investors directly invest in the job creating entity and no separate entity is formed.  The SEC has yet to take a formal position that the direct investment in the JCE is completely exempt under the 1940 Act.  Likewise, the SEC has not taken an official position whether the creation of an NCE to make an equity investment in the JCE is likewise subject to the 1940 Act, even though the NCE is being formed merely as an accommodation to a group of investors rather than having each one directly invest in the JCE, since it is much easier to administer through one common company with respect to the reporting, administration and other matters.

3.    The SEC needs to provide more guidance on broker-dealer and investment advisor registration exemptions related thereto.  For example, we have posed questions to the SEC based upon the standard type transaction that involves a regional center, developer or middleman undertaking activities involving offshore dealings with marketing agents who deal directly with the investors.  In these cases, the applicable U.S. parties are not selling investors directly, but going through marketing agents to effectuate the sale of the EB‑5 securities entirely offshore, primarily in China (China counting for approximately 85% of the EB‑5 capital based on fiscal 2013 statistics).  The concern is whether having a U.S. presence results in registration, since regional centers and middleman agents may be receiving transaction-based compensation based solely upon sales that are conducted under Regulation S in an offshore transaction that involves no “directed sales activities” from the United States.

In conclusion, we believe that it is very important that the SEC provide more detailed guidance to the EB-5 industry so that the EB-5 industry can better govern itself appropriately.

This article was written by Ronald Fieldstone and published in the September 2014 edition of Immigration Times Magazine in Mandarin. Click here to read this version.

U.S. State Department announces availability changes for Chinese nationals in EB-5 category

On August 23, 2014, the U.S. State Department announced that as of that date immigrant visa numbers for Chinese nationals in the EB-5 visa category will not be available through September 30, 2014, which will be the end of the 2014 fiscal year. New visa numbers will become available on October 1, 2014.

What does this mean for you as an EB-5 Immigrant visa applicant from China?

If you already have an approved I-526 application and you have an application for adjustment pending (Form I-485), USCIS will not begin adjudicating that application until visa numbers are available again on October 1, 2014.

If you have an approved I-526 application and are a Chinese national consular processing the visa, the U.S. State Department will not schedule an immigrant visa interview until the visa numbers become current on October 1, 2014.

Those applicants who have already been scheduled for an immigrant visa interview already have a visa number that has been set aside for them and their family members. Those interviews will go on as previously scheduled.

What impact will the announcement by the U.S. State Department have on I-526 adjudications?

The U.S. State Department announcement will not impact the adjudication of I-526 and I-829 petitions by USCIS.

What impact will the announcement by the U.S. State Department have on future EB-5 visa availability for Chinese nationals?

According to the announcement on August 23, 2014, visa retrogression in the EB-5 visa category might occur again in May 2015. The visa retrogression is estimated to be 2 years or May 2013. This means that in May 2015 the U.S. State Department in their consular processing and USCIS in the adjustment process will be processing I-526 applications that were filed in May 2013. Practically speaking, based on the current I-526 USCIS processing times, it means a waiting period of 1 year or more for the priority date to become current. This does not take into account the waiting time for consular processing or adjustment of status.

Ronald Fieldstone presents Securities Law Compliance & Deterring Fraud during AILA Conference

Arnstein & Lehr

Ronald R. Fieldstone

Arnstein & Lehr Miami Partner Ronald Fieldstone will present “Securities Law Compliance & Deterring Fraud” during the 2014 EB-5 Investors & Regional Centers CLE Conference on Friday, August 22 in Chicago. During the presentation, Ronnie will discuss issues related to EB-5 fraud and unsuccessful EB-5 projects. He will also highlight the SEC’s role in EB-5 projects while explaining the pertinent laws and regulations.

To view the agenda for this conference, please click here.

Ronald Fieldstone speaks on EB-5 issues at International Lawyers Network annual meeting

Arnstein & Lehr Miami Partner Ronald Fieldstone addressed delegates at the 26th International Lawyers Network (ILN) Annual Meeting, held May 22-24 on issues relating to the EB-5 immigrant investor program. On Friday, May 23, he addressed EB-5 Capital Raising and Citizenship. On Saturday, May 24, he spoke to the delegates again on EB-5 investments and entrepreneur visas. The meeting with held at The Peninsula Hotel Chicago. ILN is a leading association of 91 high-quality, full-service independent law firms with more than 5,000 lawyers world-wide. The Network provides clients with easily accessible legal services in 67 countries on six continents.

EB-5 Investment Boot Camp

Arnstein & Lehr Miami Partner Ronald Fieldstone spoke on May 14 at the 5th Annual EB-5 Investment Boot Camp, hosted by Mr. Brian Su, CEO Business Group, Inc., at the Hilton Los Angeles/San Gabriel. Mr. Fieldstone participated as a panelist on the topic “Structuring safe and SEC compliant offering documents.” The boot camp was a one-day event presented by Artisan Business Group and elite speakers for new and experienced immigration attorneys, project developers, regional center executives and others interested in attracting EB-5 investors from the People’s Republic of China and Chinese communities around the globe.

EB-5 on the rise in retail, mixed-use projects

Arnstein & Lehr Miami Partner Ronald Fieldstone contributed to a May 5 article for Law360 titled, “EB-5 On The Rise In Retail, Mixed-Use Projects.” The article discusses the popularity of the EB-5 program in retail and mixed-use projects. This program has become so popular in recent years because it has become a way to bridge the financial gap many developers experienced. To read this article in full, please click here.

Ronald R. Fieldstone to present at EB-5 capital raising seminar

Arnstein & Lehr Miami Partner Ronald R. Fieldstone is presenting a lecture at the Effective EB-5 Capital Raising Seminar hosted by Artisan Business Group, Inc. on April 24 titled, “Structuring an EB-5 compliant offering.” Seminar topics include: the EB-5 regional center development and management, economic impact RFEs, current landscape of marketplace, USCIS policy update and possible Visa cap for Chinese investors, regional center vs direct EB-5, project capital structures, project marketability, commission and fee structures, EB-5 capital early release, investor exit strategies, dealing and negotiation with emigration agents, emigration agent's expectations, investors decision making process, investor returns, and risk management.

For more information or to register, please click here.

To view the agenda in PDF format, please click here.
 

EB-5 financing for the franchise industry

Franchising USA Magazine published an article by Arnstein & Lehr Miami Partner Ronald R. Fieldstone on April 3 titled, “EB-5 Capital for the Franchise Industry.” The article discusses how the EB-5 Immigrant Investor Program has become a popular form of financing. An investor would have to meet certain criteria for his or her immediate family to receive permanent residence in the United States.

To read the full article, please click here.

Ronnie Fieldstone participates in panel discussion at ABA Property Law Seminar

Arnstein & Lehr Miami Partner Ronald R. Fieldstone participated in a panel discussion at the American Bar Association’s EB-5 Immigrant Investor Program on Wednesday, April 2. The webinar/teleconference is hosted by the ABA’s section of Real Property and Trust & Estate Law. The seminar is called, “EB-5 Visas and Foreign Investments in Real Estate as a Capital Source: What your Developer Client Needs to Know.” The program covers legal issues surrounding the EB-5 program, how to get your developer client started in EB-5, benefits of using EB-5 capital over traditional capital sources, Regulation D vs. Regulation S implications for developers, how to structure an EB-5 offering, SEC requirements, enforcement, and precautions; and how to structure an effective EB-5 escrow.

To learn more, please click here.

Ronald Fieldstone to participate in EB-5 Immigrant Investor Program

EB-5_Program-4.2.14 Fieldstone_RP4REB

Arnstein & Lehr Miami Partner Ronald R. Fieldstone will participate in the American Bar Association’s EB-5 Immigrant Investor Program on Wednesday, April 2. The webinar/teleconference is hosted by the ABA’s section of Real Property and Trust & Estate Law. The program is called, “EB-5 Visas and Foreign Investments in Real Estate as a Capital Source: What your Developer Client Needs to Know.” The program was created by the U.S. Citizenship and Immigration Services to stimulate job creation through foreign investment. In the past few years the EB-5 program has exploded, becoming a popular source of capital to supplement traditional fund raising. The complex regulatory environment surrounding the EB-5 program requires specialized knowledge to advise clients while staying in compliance with various regulatory bodies. This program is designed to give an overview of the EB-5 Immigrant Investor program and help practitioners advise their developer clients how to lawfully obtain EB-5 Capital for real estate projects.

To learn more about the webinar or to register, please click here.