Comment: EB-5 Finale

The battle over EB-5 reform is in its final stage (physicians and refugees are up next). EB-5 reform will pave the way for broader immigration reform, including significant benefit reform, so all those in immigration have a stake in this matter. We carry below a number of articles and news items on EB-5 reform below, including from the Senate Judiciary Committee, IIUSA, and others (we asked for permission to carry material we received from the EB-5 Coalition, which opposes the current EB-5 reform bill, but did not receive their final language at the time of going to press for this issue of Immigration Daily - should we receive it later, we will be sure to carry in the very next issue); the actual text of the EB-5 bill is linked to in a number of news items and articles below. Essentially, the EB-5 problem boils down to two points: Fraud and Location, each of which we examine briefly below.

EB-5 has been plagued by fraud, and all the large players in the industry have had absolutely ZIP to propose how to fix this. All the major players, without any exceptions, appear quite willing to continue to rake in the money, and leave it to law enforcement to pick up the pieces - the fact that innocent immigrants are being harmed in the process is simply collateral damage to those filling their moneybags. We sympathize with their conundrum in condemning the current system, since the problem is deeply structural: it has to do with EB-5's dual nature - it is, on the one hand, an immigration program, and on the other hand, EB-5 quite clearly involves choosing an investment. As to the former, Chinese migration agents and US immigration attorneys alike do a competent, even terrific, job, and no one can possibly have any complaints on this score. The problem is on choosing an investment: neither Chinese migration agents nor US immigration lawyers can credibly claim any competence in choosing the right investment. And since the wrong investment will usually lead to a bad immigration outcome, Chinese migration agents and US immigration lawyers alike ill-serve their clients when they step into the role of investment advisor. To put it plainly: a fairly significant number of EB-5 projects will likely fail in the next real estate downturn, and their investors will lose both their money and their green cards in consequence - and neither Chinese migration agents nor US immigration practitioners can reasonably claim any expertise whatsoever in eight-figure and nine-figure investments in US real estate. On the US lawyer front, SEC has been dragging its feet on pending investigations of more than 20 attorneys, giving the impression to many naive lawyers that it is A-OK to direct, control, and guide their clients' investments and receive compensation therefor. The situation in China is much worse: China last experienced a recession in the mid-1970s, so the Chinese have no clue at all about how real estate values can collapse during economic downturns, and migration agents there have the hubris to believe that they can pick winners in the world's most competitive real estate market! Adding insult to injury, Chinese migration agents routinely lie to Chinese immigrants to the USA on who gets the massive commissions for choosing investments (they blame perfidious Yankees, while quietly pocketing world-record levels of brokerage fees). Immigration Daily condemns USCIS and DOS for not alerting Chinese immigrants at the consular/adjustment stage about the exact disposition of Chinese immigrants' monies.

There is another problem endemic to EB-5: location. Immigration is necessarily subject to Congressional policy (or Congressional whim if you prefer), being an exclusively federal matter under our constitution. When it comes to EB-5, Congress has arrogated to itself the sovereign right to direct where the capital will end up - with so-called Targeted Employment Areas. Instead, the EB-5 industry has successfully gamed the system, and TEAs can as a matter of practice be created out of thin air anywhere. Job creation numbers are likewise massaged by econometric modeling, something not easy to politically defend, so naturally Congress feels cornered when defending EB-5. Unfortunately, there exists widespread industry belief that this state of affairs should continue ad-infinitum, and that it is improper for Congress to step in and direct the location of capital. Permitting subjective preferences of Chinese investors to direct the flow of capital to downtown Los Angeles and midtown Manhattan usurps what is Congressional prerogative, and the industry should not be surprised to see Congress jumping in with both feet to remedy affairs. Immigration Daily would be much more sympathetic to the EB-5 industry in standing up to Congress on the matter of location, if the industry were taking energetic steps to eject lying Chinese agents out of the EB-5 ecosystem, and substituting them with proper Chinese fiduciaries such as Chinese banks, Chinese insurance companies, Chinese wealth management companies, etc, all of which have substantially better claims to make judgements on massive investments in American real estate. Instead we see the EB-5 industry shunning savvy players in Chinese finance, and instead assiduously courting dumb capital, an untenable state of affairs (this last should explain how these two matters, fraud and location, are linked: inaction on fraud by the EB-5 industry leads to Congressional action on location).

It is with the above background that the Senate and House Judiciary Committees, acting on a bi-partisan, bi-cameral basis, have introduced language to reform EB-5. This language is inevitably flawed, and there is much to criticize when it comes to specifics. However, inaction is not an option given that the RC program will sunset within a week, EB-5 must be reformed now, and there is no time left for any further tinkering with the text. We encourage all Immigration Daily readers to call their Senators and Representatives urging that this bipartisan EB-5 compromise be enacted in the omnibus appropriations bill. To contact your Senators and Representatives, see here: and enter your five-digit zip code. You will get phone numbers for your Representative and both your Senators - a grand total of only 3 calls. Your voice matters, please call right away. Please also forward this email to all your colleagues and friends and urge them to make calls.

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Article: The EB-5 Revolution has Begun. By Matthew Gordon

Article: Letter Sent to the House and Senate Judiciary Committee Leaders: Time is now for Reform & Long Term Re-Authorization of EB-5. By: Peter D. Joseph

Article: Path America Regional Center and Giving Innocent Investors a Way Forward. By Daniel B. Lundy

Blogging: OSC Settles Discrimination Claim against Sunny Grove Landscaping. By Bruce Buchanan

Blogging: Scapegoating Immigrant Spouses, Refugees, Continues After Attack Pt. 1. By Roger Algase


News: Days Before Program Expires, Leahy & Grassley Urge Support For Legislation To Reform & Extend Job-Creating Foreign Investment Program

News: USCIS Filing Tips for Form I-924A

News: USCIS Reminder: EB-5 Regional Centers Must File Form I-924A by December 29

Focus: The Consular Posts Book 2015-2016 Edition
ILW.COM is pleased to announce The Consular Book 2015-16 edition, coming soon! The editor is Rami D. Fakhoury and contributing authors are Poorvi Chothani, Steven A. Culbreath, Dharamchand Depoo, Marc Ellis, Vic Goel, Edward S. Gudeon, Magdale Labbe Henke, Frederick W. Hong, Christi Hufford, C. Valerie Ibe, Priscilla J. Jones, Noah Klug, Jose E. Latour, Lesa Lawrence, Adam Lee, Mark Levey, Jakob Lipman, Susan Willis McFadden, Christy Nguyen, Claire D. Nilson, Curtis Pierce, Luis A. Pinilla, Jessica L. Rodriguez, Kristina Rost, Emmanuel S. Tipon, Alice Yardum-Hunter. The table of contents is as follows:

Chapter 1: Argentina
Chapter 2: Armenia
Chapter 3: Australia
Chapter 4: Brazil
Chapter 5: Canada
Chapter 6: China
Chapter 7: Colombia
Chapter 8: France
Chapter 9: Germany
Chapter 10: Haiti
Chapter 11: India
Chapter 12: Jamaica
Chapter 13: Nigeria
Chapter 14: Philippines
Chapter 15: Taiwan
Chapter 16: Trinidad and Tobago
Chapter 17: United Kingdom
Chapter 18: Vietnam

Chapter 1: Introduction
Chapter 2: New Attorney Vulnerabilities in International Practice;
Chapter 3: Trade and Immigration Tightening? NAFTA, WTO, GATS Soup to Nuts
Chapter 4: Tips for Avoiding B-1/B-2 Visa Denials and Correcting other Refusal Issues with the Consul
Chapter 5: The Visa Waiver Program (VWP): Not As Simple and Easy As It Looks
Chapter 6: Non-Immigrant Classes and Their U.S. Tax Obligations
Chapter 7: E-1/E-2 Treaty Traders and Treaty Investors
Chapter 8: The Consular Role in L-1 Blanket Petitions
Chapter 9: H-1B "Dependent Employees": From Labeling to Lawbreaking
Chapter 10: Temporary Assignment of H-1B Employees to Client Work Sites
Chapter 11: State Department Name-Checks and Security Advisory Opinions (SAOs)
Chapter 12: ICE Data-Mining and Federal Benefits Fraud Task Forces - Send In the Marines: Best Practices to Survive Audits and Task Forces
Chapter 13: What to do if Your Client's Visa is Denied: Visa Office Advisory Opinions
Chapter 14: A Template for Attorney Risk-Assessment


For additional information, including author biographies and to purchase, please see:
By Fax

Headline: IIUSA-ltr-to-Congress-RE-bicameral-Judiciary-Comm-reform-reauth-FINAL.pdf Click here
Headline: U.S. Granted 680,000 Green Cards to Immigrants From Muslim-Majority Nations in Past Five Years Click here
Headline: Sens. Sessions, Cruz Demand Immigration Histories of San Bernardino Attackers Click here
Headline: Ray of hope for undocumented immigrants in sidelined debate on immigration Click here
Headline: Immigration fraud probe uncovers alarming problems in U.S. asylum process Click here
Headline: Who are the Syrian immigrants in U.S.? Click here

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Letters of the Week: Nolan Rappaport, Marko Milakovich

ComingsNGoings: Immigration Event
December 10, 2015, 6pm (Eastern), New York, NY. The U.S. Committee for Refugees and Immigrants (USCRI) will hold a discussion with Lavinia Limon on the "Syrian Refugee Crisis." The discussion will include an overview of the Syrian refugee crisis, including a discussion of the numbers and flows of Syrian refugees, the impact on Jordan, Turkey, Lebanon, Iraq and their response, U.S. and International Community response, resettlement of Syrian refugees and the responsibility of the international community. Location: Orrick's NY Office, CBS Building, 51 West 52nd Street. RSVP by Friday, December 4 here.

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