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The decision was taken when an employee reportedly found some suspicious powder in an envelope. Chinese authorities have been notified and no-one has been reported injured. Nolan Barkhouse, press spokesman at the US embassy in Beijing, said that Consular services “will resume as soon as we have completed our investigation in accordance with all our established procedures to handle this type of situation”.

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The consulate serves the provinces Guangdong, Hainan and Fujian and the Guangxi Autonomous Region, and reportedly handles 121,000 visa applications per year. This closure could potentially affect some 1,800 visa applications including EB-5 petitions.

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However, those aiding the legislative negotiations say that deportees would not be granted an automatic right of return – they would have to apply to return to the U.S.  Those who have been expelled for criminal reasons, or if convicted of a felony or at least three misdemeanors, would be ineligible to apply.  The waivers would be granted at the discretion of the secretary of homeland security.

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To read more, see NYT Article.

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April 25, 2013
Washington, DC

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The Securities and Exchange Commission (SEC) has filed charges against Daniel Peterson and his company USA Real Estate Fund 1 for misleading investors under the Jumpstart Our Business Startups (JOBS) Act.

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Peterson raised about $400,000 from more than 20 investors, some of which he spent on personal expenses. Peterson repeatedly stated to the investors that the 2012 JOBS Act would enable him to raise billions of dollars by advertising the offering to the general public.
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The SEC has not adopted the proposed rules to the JOBS Act, which means the securities issuers cannot yet solicit investment from the general public. An interesting fact is despite the fact that the capital raised from the defrauding scheme based on the JOBS Act is relatively insignificant, the SEC charged Peterson and his company for antifraud provision violation.
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The SEC announcement and complaints can be found here.

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The Beijing Exit Entry Service Association (Quasi-government entity that supervises global migration matters) summoned all the registered migration agencies in Beijing to address the impact of the fraudulent Chicago Convention Center EB-5 project on the market. The president of the association warned all the agencies of the risks of the EB-5 projects in the US and urged the agencies to conduct independent due diligence on each project they work with.

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During the meeting, the association proposed to charge the EB-5 projects that are interested in entering the Chinese market an application fee. The fee would enable the association to conduct preliminary due diligence. This practice is by no means novel. Taiwan currently charges a fee for all projects. The proposal is under discussion within the agencies. It is unclear whether the Chinese authorities would adopt the proposal as the official policy.

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The summary of the meeting (in Chinese) can be found at the official website of the Beijing Exit Entry Service Association.  See here.

On April 16, 2013, an outline of the Senate Immigration Bill was released titled, “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”  The bill was introduced to the Senate on April 17, 2013 comprising of 844 pages.  This can take months to debate before implementation.  However, this gives hope for millions of undocumented immigrants to gain citizenship.  The bill also discusses border security, allocation of visas, and employment verification.

Legalization and Legal Immigration:

For those in unlawful status, this bill introduces adjustment of status to the legal status of Registered Provision Immigrant Status.  The requirements are as follows to attain this status:

1. Residence of the US prior to December 31, 2011 and continuous presence since then
2. $500 penalty fee, except for those eligible for DREAM Act
3. Pay taxes
4. Fees for processing the application
5. Cannot be convicted of:
   • Aggravated felony
   • Felony
   • Three or more misdemeanors
   • Offense under foreign law
   • Unlawfully voted
   • Inadmissibility for Criminal, National Security, Public Health, or other morality grounds
6. Can petition for derivatives if in the US at the time
7. Can work and travel
8. Application period for 1 years and possibility of extension for an additional year
9. Can apply if in removal proceedings
10. Status lasts for 6 years; is renewable with another $500 penalty
11. Not eligible for any Federal means-tested public benefits
12. May adjust to LPR after 10 years; $1,000 penalty fee

To read more, please see: 2013 Immigration Act

The team at MSA will continue to follow the debate closely, and hope that a decision is made sooner rather than later.

The article SEC Enforcement Action and EB-5 Practice focused on the EB-5 program, its creation, and regulatory and enforcement issues involving the Securities and Exchange Commission, the following aspects are discussed:

• Interactions Between the SEC and USCIS
• Size of the EB-5 Transactions
• Regulation D and Regulation S Exemptions
• What It Means to Be a Registered Broker/Dealer
• Finders Violation
• SEC Investigation and Enforcement Action

The article can be purchased or downloaded from here:

http://agora.aila.org/Product/Detail/1291

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About the Authors

Yi Song is an attorney at Mona Shah & Associates in New York City, where she practices business immigration and securities law, and works on many successful EB-5 capital-raising projects. Before joining Mona Shah & Associates, she worked at a securities litigation firm in Manhattan. Ms. Song also clerked at the Supreme Court of People’s Republic of China. She graduated from Beijing Foreign Studies University and Georgetown University Law Center in Washington, D.C. She is also licensed to practice law in People’s Republic of China. Her articles on EB-5 and securities law are published by LexisNexis, AILA, eb5info.com, and ILW. Ms. Song is a native speaker of mandarin Chinese. She also speaks fluent English and basic French.

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Robert G. Heim is a partner at Meyers & Heim, LLP. He was formerly an assistant regional director of the SEC in New York City. Heim specializes in corporate and securities law, including corporate formation and capital-raising, securities regulatory work, securities litigation, white collar criminal defense, and FINRA arbitrations. He is frequently asked to speak on subjects relating to business and securities law. He has also lectured at Yale University, the Wharton School of the University of Pennsylvania, and New York University’s Stern School of Business. Mr. Heim has also written for the New York Law Journaland was quoted by the Wall Street Journal. Mr. Heim is admitted to practice law in the U.S. Supreme Court and in the state and federal courts of New York. He is a member of the Association of the Bar of the City of New York, as well as a member of the board of directors of the Institute for Mediation and Conflict Resolution in New York City.

Mona Shah, Esq.

Yi Song, Esq.

Introduction:

On February 6, 2013, the Securities and Exchange Commission (SEC) charged the EB-5 project A Chicago Convention Center (ACCC) and its principal Anshoo R. Sethi with securities fraud. The project was marketed primarily in China, with great pomp and fanfare. It offered 499 limited membership interests to EB-5 investors and managed to sell more than $145 million in securities, unfortunately under misleading pretenses. There was $11 million in administrative fees collected from more than 250 investors. Despite a promise to refund this fee should the case collapse, more than 90 percent of the administrative fees have already been dissipated. Fortunately for the investors, the actual investment money was kept in escrow and thereby saved. However, as this event is unprecedented in EB-5 history and the first time an EB-5 transaction of this size has been put on the radar of the SEC. The ACCC case has had profound impacts in EB-5 marketing trends in China.

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Current Situation with the ACCC Investors and the Negative Publicity of the EB-5 Program in China

At present, $147 Million of investor’s funds from the ACCC project are held in escrow in US based accounts. On March 6, 2013, the SEC filed a formal opposition to the Investors’ Motion to intervene for the investment to remain with the escrow agent or to be transferred to an alternative escrow agent. The SEC opposition[1] is based on a number of factors, including the lack of unanimity amongst the investors and the appointment of a receiver for disbursement of investor funds.  The SEC argues that the money should be returned directly to the investor. The authors believe that the SEC will prevail in the opposition to the motion to intervene. If the funds will be wired back to the investors’ personal accounts, it will take months before the investors’ funds can be transferred to a new EB-5 project.

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China Central Television (CCTV), the biggest television network in China has highlighted the US Securities and Exchange Commission (SEC) prosecution against ACCC and EB-5 investment as “high risk investment products”[2].   On March 8, 2013, the Chinese Ministry of Foreign Affairs[3] warned the Chinese investors of the “EB-5 Fraud” in the immigrant investor program and stated that the Chinese investors should carefully choose among the migration agents. It is very rare for the Chinese Ministry of Foreign Affairs to make such a bold comment. The important issue that should not be forgotten is that the joint action of USCIS and the SEC actually prevented the investment funds from being dissipated.

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The EB-5 immigrant investor program in the United States became popular among foreign investors, including Chinese investors, because the US has always been a desirable destination to live. The determining factors include: – having the highest worldwide GDP and the No. 1 world economy; world renowned universities and higher education; the most diverse cultures; basic constitutional rights and freedom; US is still perceived as the land of the opportunities, etc.  However, the unrelenting problems of the EB-5 program had started to cause a regression among Chinese investors against investing in the United States long before the ACCC scandal. Though at the end of February 2013, the State Department Visa Office confirmed that as the visa usage dropped in recent months, which is another sign that US has been losing investors to other countries, it is no longer expected that China will reach the country limit quota in 2013.

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The negative publicity surrounding ACCC certainly has contributed to pushing potential investors into the arms of the European competition.  In the last month alone, we are aware of at least 20 confirmed investors, who had signed up for US EB-5 projects, withdraw, preferring to invest in Portugal instead. Based on our constant interaction with the Chinese investors, brokers and marketing consultants, issues such as the prolonged processing times (investors are tired of waiting for as long as 18 months to obtain a I-526 approval), the greater investment risks, unpredictability in policy making, not to forget the massive amount of negative publicity in China, following the ACCC debacle, have all contributed to this detachment. [4]

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European Countries Offer the “Citizenship for Sale” Option

As the popularity and demand for EB-5 money grows, we have almost come to expect that these foreign investors will want to park their money in no other country but the United States.  In actuality, the United States is facing severe competition from other Countries, including Spain, Portugal, Cyprus, Ireland not to mention the United Kingdom and Canada.

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In October 2012, Senator Chuck Schumer (R-NY) and Senator Mike Lee (R-UT) proposed an initiative to offer visas to foreign nationals who would invest $500,000 to purchase a residential property. This homebuyer visa was severely criticized as “citizenship for sale”, a dangerous step toward monetization of nationality. While the United States is debating the morality of the homebuyer visa, other countries such as Spain, Portugal and Cyprus have made the homebuyer visa reality. Foreign investors can purchase a home in Portugal, Spain, Cyprus and Ireland to obtain permanent residency.

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Who are Competing with the United States to Attract the Immigrant Investors?

European countries have offered the investors the option to purchase a residential property to obtain permanent residency and eventually EU nationality.  Both Portugal and Ireland offer the homebuyer visa for 500,000 euros (approximately $651,000). Hungary offers residency to those who purchase 250,000 euros worth of government issued bonds. Spain topped the list of minimum investment among all the immigrant investor programs on the global market. To obtain permanent resident status in Spain, the Investor only needs to purchase a home in Spain that is worth at least 160,000 euros (approximately $208,000).

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There are other advantages for the Chinese investor interested in Europe. In Portugal, for example, no source of funds documents is required, the process takes as little as 6 months and even the investor’s parents are included in the petition.  The investors have nearly no risk in obtaining the permanent resident status. None of the countries mentioned above require the immigrant investor’s capital be placed “at risk”. The investors immediately obtain a residential property in these countries. The agents/investors admit that they understand it may not be the best investment products, considering the on-going debt and housing crisis in those countries. But the permanent residency in those countries is a safety net.

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Another advantage of the homebuyer visa in European countries is investors consider it as a fast track to E.U. citizenship. Any E.U. country passport is a valid travel document in all E.U. countries. It gives the investors access to European countries like the United Kingdom, which have restricted immigration policies. Chinese immigration agents and brokers are all encouraging this investment, as there is a faster turnaround, no I-829 headache and overall, less work.  The typical commission to the agent is 12% to 17% of the € 500,000 with at least 10% up-front payment to the agents.

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The Market Outlook

It is not all doom and gloom for the EB5 Industry, despite all the above mentioned competition and other issues.  On the down side, the properties, particularly in Spain and Portugal are mostly foreclosed or “crashed” properties, left over from the construction boom of 5 years ago. Those Investors who want to emigrate for the sake of their children’s education will continue to prefer the US. There will always be a market for US immigrant investor program; however, the Chinese investors and agents will be even more cautious in choosing the good investment projects. Large-scale projects may become more difficult to sell. It will take longer to fill a certain project than it is.

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For countries that offer the homebuyer visa, such as Portugal, they continue to be heavily in debt.  Euro zone funding to Portugal is expected run out in the third quarter of 2014[5]. If the Country defaults on the debt, as appears likely in Portugal 2014, long term recession, currency devaluation and social instability follows, as occurred in Argentina in the early 2000’s. The residential properties that the Chinese Investors are purchasing will have low resale value, nothing close to the sum paid. When we raised these points with Chinese agents promoting Portugal, the response was: “we are not promising a return of capital, only permanent residency”.

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Conclusion

In a meeting Mona Shah & Associates with the President of Beijing’s Exit / Entry Industry Trade Association[6] and major global migration agencies in December 2012, we were told that that there is always a market for the US, but we have to work together to beat the competition.  Once the furor over the Chicago Convention Center calms, and there are more EB-5 success stories, we are confident that eventually, the tide of public opinion will pull the straying Chinese investors back to the US. The question is how long does it take.

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About the authors:

Mona Shah, Esq.

Mona Shah, Esq. is Managing Partner at Mona Shah & Associates, a New York City based-immigration firm. She is highly proficient and well-versed in the field of immigration law, particularly on EB-5 matters. Mona has successfully raised 75 million for a Time Square Hotel through EB-5 financing and frequently represents both EB-5 Investors and Regional Centers. Mona is experienced in establishing EB-5 Regional Centers and boasts several years of filing EB-5 Investor petitions for both regional centers and private non-regional center investor cases. In addition, Mona has handled with complex, multi-faceted Requests of Evidence (RFEs) for both the Regional Centers and investors.

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As a former Crown Prosecutor with the British Crown Prosecution Service, Mona became proficient in advocacy and litigation. Mona possesses unique specialization in both litigation and business immigration matters. Mona was one of the four original founders of New York City Regional Center and the only Immigration Attorney on the team. She was a Partner at the New York Immigration Fund Regional Center and has exclusively handled all aspects of the Times Square Hotel Project. At present, Mona represents several EB-5 investors and multiple regional centers in their related petitions and applications.

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Mona has authored and published numerous articles including EB-5 related articles, which have been published extensively. She is frequently called upon to speak on various immigration matters. She is often featured as a guest speaker at legal seminars and on local television news programs. Mona has been honored for her work by various groups and non for profit organizations. Mona graduated from the University of Northumbria in England in 1990.  Mona was admitted as a Solicitor of the Supreme Court of England & Wales in 1993, and was admitted to the New York Bar and the United States Federal Bar in 1997.

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Yi Song, Esq.

Yi Song, Esq. is an attorney at Mona Shah & Associates in New York City. She is also licensed to practice law in People’s Republic of China and practiced corporate and tax law. Born and Raised in Beijing, Yi has the first hand experiences with Chinese market and culture. Before joining Mona Shah & Associates, she worked at a securities litigation firm in Manhattan. She clerked at China’s high court – the Supreme Court of People’s Republic of China. At Mona Shah & Associates, Yi practices EB-5 law and securities law and works on many successful EB-5 capital raising projects. She obtained her LL.B. degree from Beijing Foreign Studies University and she is a graduate from Georgetown University Law Center in Washington, DC. Her articles on EB-5 and securities law are published by LexisNexis, AILA, eb5info.com, ILW. Yi is a native speaker of mandarin Chinese. She speaks fluent English and basic French.

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Notwithstanding the above, however, the fact remains that the provisional unlawful presence waiver process excludes many individuals who really ought to be.  Under the new rule, those persons who previously started the process and paid the required government fees cannot apply for this waiver.  Such persons are being arbitrarily punished and for no good reason whatsoever! They must continue the process under the “old rule” –   assume the risk of travel when they depart the U.S. and then wait to find out whether or not their immigrant visa applications will ultimately be granted.  This step is required if they are to successfully return to their loved ones in the U.S. Even if such persons decided to file new applications, they will find themselves between a rock and a hard place.  To receive the benefits under the new stateside waiver process, all applications would have to be withdrawn and cases would have to be started anew.  In other words, their choice would be between: (1) continuing with their existing pending cases with all its risks and uncertainties as they near the front of the line to probably obtain their immigrant visas or (2) abandoning those applications, starting over a new, which means joining the back of the line for years until a new appointment is scheduled, and paying fees again!

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It should be obvious why the above highlighted inconsistencies should not be allowed to occur.  The very purpose of implementing the provisional unlawful presence waiver is to reduce the various strains on United States citizens whose immediate relatives are unlawfully present and must depart the U.S. to receive their visas for return.  Why now arbitrarily punish those who filed earlier than others?

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The renewed legislation provides $659 million dollars in federal funding over five (5) years for VAWA programs.  It also expands VAWA to: (1) include new protections for LGBT and Native American victims of domestic violence; (2) give more attention to sexual assault prevention; and (3) help reduce a backlog in processing rape kits.

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VAWA Basics

Recognizing that some abused non-citizens stay in abusive relationships because their spouses are able to control their immigration status in the U.S., Congress passed the Violence Against Women Act (VAWA) in 1994. Under its major provision, an abused spouse or child of a United States Citizen or Lawful Permanent Resident can self-petition for lawful status in the United States.

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