Folks, a few weeks ago I was interviewed extensively both on and off camera by Reuters reporters doing a comprehensive investigative piece on the EB-5 Immigrant Investor Visa. My good friend Michael Gibson, along with a number of other attorneys and principals in the EB-5 sector, were also interviewed.
As happens with investigative journalism, the several hours of interviews they had with me were reduced to a few quotes. I want to address one quote in particular, lest it is taken out of context. In extensive Q & A regarding the enforcement roles of the SEC and USCIS, I expressed repeatedly that I believe that USCIS was doing a solid job of adjudication and, after prior INS failures, had established substantial domain expertise on the visa via their EB-5-dedicated unit in Laguna Niguel. I told them that recent I-829 denials were, IMHO, consistent with the letter and spirit of the EB-5 legislative language; others interviewed in the article characterized some of these decisions as unreasonable, a view which, in the majority of cases I have reviewed, I do not share.
My comment regarding the USCIS doing a good job was, however, tempered by my responses to their questions regarding what role, if any, the SEC is having in enforcing the securities aspects of EB-5 visas. I again expressed my sincere view: to date, the SEC has not gotten involved in any significant way. I further stated that in lieu of the many flawed projects being marketed in China (with an increasingly concerned Chinese government watching carefully), the EB-5 sector needed to establish a proprietary code of conduct and ethical standards for industry. Like existing EB-5 organizations, membership would be voluntary; but it would at least give prospective investors an opportunity to choose between an EB-5 Regional Center that has agreed to be truthful about denials as WELL as approvals and subscribes to enumerated ethical protocals...and one which does not.
Finally, I stated that if the EB-5 sector does NOT establish this form of self-policing, it is only a question of time, in lieu of the recent BMW decision cited in the article, before the SEC comes looking at the sector from a securities law enforcement angle. That eventuality would only result in sanctions for those Regional Centers violating securities laws, but it would have a chilling effect on the overall EB-5 Investor Visa program during a time where EB-5 capital is one of the few growing investment income streams in our still-faltering economy.
Enough said: here's is a VERY THOROUGH look at important EB-5 issues and concerns...