The Securities and Exchange Commission (SEC) has just published three new decisions in connection with administrative proceedings against two well known immigration lawyers, as well as against a third lawyer. One party has allegedly earned $450,000 in commissions from one EB-5 Offeror alone. This enforcement is not surprising. Last year, we saw several immigration lawyers subject to the same proceedings and sanctions. The allegations are resoundingly familiar: Violation of Section 15(a)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”). We expect even more SEC enforcement activity in this space. Why is the SEC targeting immigration lawyers? What implications are there for all parties in an EB-5 transaction and to the industry as a whole when an EB-5 Offeror pays finder’s fees to lawyers?

Immigration lawyers are EB-5 gatekeepers

The SEC has a strong interest in prosecuting civil violations of securities laws by gatekeepers of securities markets.

Immigration lawyers are viewed as gatekeepers to the EB-5 Program. What is a gatekeeper? In the securities law context, a gatekeeper is a professional that holds a position of trust who should be looking out for the interests of a specific securities market. The idea is that the integrity of markets is kept in check by professionals charged with executing their responsibilities. Accountants, lawyers and auditors are often gatekeepers of the securities marketplace.

The SEC has the objective of keeping gatekeepers accountable. The SEC expects gatekeepers — be they accountants, lawyers or auditors to name a few — to raise red flags when there are visible issues and problems in an offering of securities. This maintains the integrity of markets and protects investors. When gatekeepers violate securities laws or engage in conduct that turns the concept of protecting investors on its head, the SEC becomes very interested in holding those individuals accountable. The idea here is that gatekeepers are front-line protectors of a marketplace. Immigration lawyers in the EB-5 industry have often taken on this role. They are often the first to be able to spot an irregularity in an EB-5 transaction. And immigration lawyers often comment on or assist with drafting documents prepared in connection with an EB-5 offering.

The SEC likes to hold out gatekeeper-violators of securities laws as examples for an industry. This is no consolation for the attorneys facing sanctions and disgorgement, but it does explain to some degree how the SEC prioritizes investigations and why immigration lawyers are of interest. Attorneys with high profiles in the EB-5 industry who are involved in producing investors for regional centers or who engage in marketing should be concerned. And so should the attorney who takes a finder’s fee from a regional center one single time. The SEC also pursues “minor violations” particularly by gatekeepers to set an example for an industry. One of the attorneys in today’s proceedings had received $37,500 in finder’s fees. This was sufficient for the SEC to pursue administrative proceedings and sanctions.

Transaction-based compensation is often not difficult for the SEC to trace and later prove

The DNA of these three recent cases is virtually identical, with the SEC finding that each of the attorneys earned transaction-based compensation for steering clients to specific EB-5 regional center projects. The SEC ordered disgorgement of unlawfully earned commissions along with interest in all three cases. One of the three attorneys also incurred a civil monetary penalty of $30,000. He is alleged to have had commissions transferred to a foreign bank account despite the fact that his business is U.S. based. In the case of one of the other attorneys, he had a “Referral Services Agreement” in place with the EB-5 regional center that paid him compensation. This means that these attorneys left their fingerprints in very identifiable places, which SEC investigators love. Continue Reading Three Immigration Lawyers Sanctioned by the SEC for Brokering EB-5 Investments

On August 11, 2016, USCIS published new processing times for I-829 petitions. The news is not good for EB-5 investors. USCIS is now taking in excess of 21 months to adjudicate I-829 petitions. This means that EB-5 investors may wait more than one or even two years for final approval of an I-829 from USCIS. The delays are unconscionable.

For those less familiar with EB-5 terminology, the term I-829 refers to the form number of the petition that an EB-5 investor files within 90 days of the expiration of his or her conditional green card status. An investor’s I-829 is supported by proof that, among other things, there has been sufficient job creation to support his or her green card case. At the I-829 stage of the process, an investor must also evidence that his or her investment has been sustained. For thousands of investors, what should be a relatively ministerial process of verifying facts has turned into a bottleneck. Continue Reading I-829 Delays Reach All-Time Record: Thousands of EB-5 Investors in Limbo at USCIS

As the EB-5 program continues to expand and regional centers have attracted increasing attention from foreign investors seeking to become permanent lawful U.S. residents, there has been a corresponding increase in regulatory scrutiny of EB-5 investments.  The increased attention has resulted in civil lawsuits brought by the Securities and Exchange Commission (SEC), and criminal prosecutions by the Department of Justice (DOJ).

Continue Reading Questions EB-5 Regional Centers Should Be Asking When Purchasing D&O Coverage