Like Elsa, the Princess in Disney’s classic Frozen, once again the Securities and Exchange Commission (SEC) has utilized its power to freeze. In this case, the freezing of assets. In what has become an increasingly common tactic, the SEC successfully sought to freeze assets of several individuals and corporate entities in a complaint it recently brought alleging fraud in connection with securities offerings for projects under the EB-5 immigration program. As we have reported previously, particularly in the EB-5 space, the SEC has in recent years utilized the asset freeze as an enforcement tool. The EB-5 program allows foreign investors to apply for green cards in exchange for a minimum $500,000 investment in a job-creating enterprise.   Continue Reading “The cold never bothered me anyway!” SEC again uses its power to freeze an alleged EB-5 scam

The chances of a stand-alone EB-5 bill gaining consensus with lawmakers on Capitol Hill are low. With the GOP failing to repeal the Affordable Care Act, lawmakers may be spending time readjusting priorities in unexpected ways for the remainder of 2017. The EB-5 Program is unlikely to be a priority. Also, stand-alone EB-5 legislation has not proven to be a successful way for lawmakers to achieve reforming the Program. As we approach 2018, odds are that lawmakers won’t spend political capital on an EB-5 bill. Check out our recent Advisory.

Our colleague Rebecca Zeidel just published a terrific blog posting on the U.S. Supreme Court’s recent decision in Kokesh v. SEC, in which the Court imposed a five-year statute of limitations on agency-sought disgorgement in SEC enforcement actions. This decision resolved a Circuit split and definitively categorized disgorgement as a statutory “penalty” under 28 U.S.C. § 2462. That statute applies a five-year limitations period to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise.”

This development is relevant in the EB-5 litigation context, where we see the SEC impose disgorgement in administrative proceedings as one penalty, among others, against issuers or other parties who have engaged in securities fraud or other violations of the securities laws in EB-5 transactions. Continue Reading U.S. Supreme Court Blocks SEC from Imposing Disgorgement beyond Five-Year Statute of Limitations

As we head into the summer, there is no certainty that we will see changes to the EB-5 Program. Lawmakers may simply not act, which may result in EB-5 being included in Continuing Resolutions alongside other immigration programs that are temporary, at least in the near future. We also don’t know the fate of the EB-5 rulemaking process underway at the Department of Homeland Security (DHS). The EB-5 ecosystem is in limbo.

That said, regional centers and developers can’t be ignoring that change to fundamental aspects of EB-5 could happen quickly. In this environment, regional centers and other recipients of EB-5 capital have to gear up for changes to deals that could take effect midstream, while offerings are on the market.

Now is a good time for regional centers and issuers to develop plans for accommodating potential changes to deals that are on the market or being launched this summer. Having a solid plan of action before the law changes is sensible. Continue Reading Getting Ready for Change in the EB-5 Ecosystem

Douglas Hauer, Co-Chair of the EB-5 Financing Practice and a Member of the Corporate and Securities and Immigration Practices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., is speaking at the North American Securities Administrators Association’s (NASAA) 2016 Corporation Finance Training. The event is taking place November 18-19 at the Westin Oaks Hotel in Houston, TX. Continue Reading Mintz Levin Attorney Douglas Hauer to Speak at NASAA 2016 Corporation Finance Training

United States Citizenship and Immigration Services (USCIS) recently announced a new proposed rule for entrepreneurs. If the rule becomes law, qualified entrepreneurs would be considered for parole (temporary permission to be in the United States) to jumpstart and build their businesses in the United States. The rule is a path-breaking proposal because it seeks to use and retrofit an existing immigration benefit called “parole” to meet the needs of entrepreneurs, who may otherwise be unable to secure a nonimmigrant visa such as an H-1B or E-2 visa.

But while this proposal could be a solution for some entrepreneurs, it contains requirements that are out of step with the realities of many emerging companies. Note that we may not see a final rule published until next year (if at all), and any final rule would likely have adjustments. The proposed rule is intended to accelerate innovation that will have a broad impact on the United States but is burdened with job creation and minimum investment requirements that aspiring and potentially IPO-bound entrepreneurs would not be able to satisfy in the initial years of growing a business. If finalized in its current form, the rule would benefit very few founders of emerging companies. Continue Reading Proposed USCIS Rule for Entrepreneurs Would Benefit Very Few if Finalized

This afternoon, a draft of the Continuing Resolution (CR) began circulating in Washington, DC. The CR, which Congress will likely pass early next week, will keep the federal government running through the November election. According to Alexander Hecht, Vice President of Government Relations at ML Strategies, upon enactment, the EB-5 Regional Center Program will be extended through December 9, 2016 – the length of this current CR. “Since EB-5 was contained in last year’s Omnibus appropriations bill, it is automatically extended by a Continuing Resolution for its duration. There was no need for legislators to specifically mention EB-5 in this Continuing Resolution,” stated Hecht. Stakeholders should continue to monitor developments related to the CR, but according to Hecht, “passage in both chambers seems very likely early next week, as legislators on both sides of the political aisle are anxious to get home to focus on campaigning for the November elections.”

The extension of the reauthorization for the EB-5 Investor Visa Program may lapse on September 30, 2016. Whether lawmakers will invest time in EB-5 this coming month is an open question, but it is more probable than not that we will see no movement. Every day, it becomes less likely that EB-5 will be on the agenda of lawmakers. Despite inroads to advance legislation to introduce integrity measures to the Program, there is no indication that lawmakers will act. Anything is possible, and lawmakers could surprise us. But there is little time for reaching any consensus on changes to the Program in the coming weeks. With the presidential election looming in the background, EB-5 won’t be near center stage. For now, the status quo may continue for many months and into 2017. Continue Reading EB-5 Reauthorization Heading into Lame Duck Session of Congress

Several securities lawyers from several firms across the United States with a focus on EB-5 have organized a roundtable to discuss securities law issues.

The EB5 Securities Roundtable is an informal, independent group of EB-5 securities attorneys organized to facilitate best practices in the offerings of EB-5 securities. The EB5 Securities Roundtable is not affiliated with any EB-5 industry organization, regional center, offeror of EB-5 securities or job-creating recipient of EB-5 funds, and it receives no outside financial contributions, according to its website. Mintz Levin is one of the law firm participants.