Comment: Investigations Bedevil EB5
3 major federal investigative agencies are involved in a sweeping look into EB5 practices, we expect action, including enforcement action, this fall (the 3 agencies are: the SEC, the FBI, and the IG of the DHS). The roots of this matter, revealed just last week, suggest that 3 separate forces are at work: political, criminal/regulatory, and national security.

The political issues are relatively straight-forward and involve 2 principals of a Regional Center, Anthony Rodham, brother of Hillary Clinton, and Terry McAuliffe, former Chair of the Democratic National Committee. Mr. Mayorkas, Director of USCIS, testified last week that the Office of Inspector General at the DHS was investigating him personally in connection with this RC (in addition to a more far-ranging EB5 investigation). Per the Inspector General Act of 1978, as amended in 2008, the OIG concerns itself with prudent accounting of public monies, and is a safeguard against bribery, fraud, and waste. All who know Mr. Mayorkas expect him to be fully exonerated once the OIG completes its investigation. Since EB5 Regional Centers often bring politically well-connected personalities in their wake, incidents such as this investigation may well be merely collateral consequences.

The matter unfortunately does not rest there. Both the Securities and Exchange Commission and the OIG at DHS are apparently reviewing customary practices in the EB5 field, with a view to unearth possible criminal and/or civil violations. Given the deplorable state of past EB5 practices, we have no doubt that both agencies have already uncovered industry-wide non-compliance with US statutes. Realistically, a quantity of indictments can well be expected, and given the time already expended by these agencies (about a year’s worth of investigation), some of these indictments will stick. While no one in law enforcement wants a reprisal of the Izummi period, where EB5 investments into the USA were nearly halted, the scope of recently revealed investigations raises a reasonable fear that this might be a possibility. On the other hand, a cleaned-up space portends well for future growth in EB5 investments, with concomitant job creation, surely good news for Congress, and for those in the American workforce seeking jobs. We urge federal investigators not to kill the goose that lays the golden eggs, and to use gentle-handed tactics designed to modify behavior, and not designed to be punitive. We are confident that SEC and DHS can act with sensitivity in fostering compliant practices without threatening to put nearly everyone in the EB5 space into prison.

The most serious matter involves national security. We will cover this matter in an upcoming editorial in Immigration Daily, stay tuned. Share your thoughts by writing to editor@ilw.com.

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