路透社:美国政府财政不参与EB-5区域中心项目的投资

近两年来，美国EB-5投资移民在亚洲地区包括中国大陆、韩国等地非常受欢迎。EB-5投资移民 从2004年及之前的每年近500个左右移民签证上升到2010年前半年就发放近4500个，其趋势是极可能用完每年总共一万个 法定名额。 不过，在2010年12月16日，美国移民局公布了过去6年EB-5投资移民的批准和拒绝数据后，我们的律师通过数字分析本质， 认为总体而言，EB-5类投资移民途径是带有高风险但又是可行的方式，高风险体现在，近几年的最终I-829申请拒绝加I- 526拒绝率总数在25%-30%左右。 也就是说，在投资了50万或100万美元或更多的资金后，外籍投资人仍有25%-30%机会拿不到绿卡。因此，外籍投资人应该对 EB-5投资移民的风险有一个清醒的认识。 导致外籍投资人花了钱但最终拿不到绿卡的原因很多，其中之一就是无法在两年内创造10个美国工人就业机会 。按照移 民局统计数字显示，历年I-526申请案中有90%左右来自于移民局批准的区域中心的项目，投资于区域中心项目风险较大，I- 829的拒绝应该有相当一部分来自投资区域中心项目的案件，主要原因在于个别投资项目无法证明申请人拿到I-526批准后2年内 实现了法律要求的创造10 个美国劳工(公民或绿卡持有者)就业机会。 其次，在准备申请的过程中，一些移民中介的误导宣传刻意淡化投资的风险，也在一定程度上导致了投资人最后的失败。例如，路透社在 一篇报道中提到，在韩国首尔举行的一次EB-5投资推介会上，某移民中介就对纽约市区域中心的布鲁克林体育馆和基础设施项目有如 下介绍：纽约市政府介入了该项目，投资者无需担心获得绿卡的问题。推介该项目的有关人士在中国大陆也做过类似的介绍。但是，当路 透社的记者问及纽约市区域中心的管理人时，该人士承认类似的介绍是不准确的。 路透社的记者在进一步调查后发现，为吸引外资，类似的介绍在美国境外被先后重复了很多次。 实际上，类似介绍正是由 纽约市区域中心出台的。该中心在向外推介布鲁克林体育馆和基础设施项目时，经常邀请布鲁克林区的官员随行，给外籍投资人以有政府 支持的假象，这一招在中国大陆比较灵，因为人们比较相信政府的作用，认为政府支持的项目有保障、风险较低。实际上，与向中国投资 者推介的正相反，无论是纽约州政府还是纽约市政府都不是纽约市区域中心的正式合作伙伴，政府机构并没有向纽约市区域中心投 资 。 最后，除了区域中心的误导或欺骗性推介外，某些移民中介或律师为了自身的利益（例如收取区域中心许诺的佣金等等），也会做出一些 误导性的推荐，从而增加了EB-5投资移民的风险。 总之，对于外籍投资人来说，EB-5投资移民有风险，需谨慎分析相关的介绍，谨慎选择好负责的律师，钱出手前要做好功课，免得最 后竹篮打水一场空，赔了夫人又折兵。 如想浏览路透社的相关报道，请点击以下链接： http://www.huffingtonpost.com/norman-oder/reuters-nails-lies-by-pro_b_801070.html

A couple of astonishing things happened last week in coverage of the EB-5 immigration visa program--green cards for investments--the dubious use of which I've investigated for months regarding Atlantic Yards, the controversial arena-plus-towers megaproject in Brooklyn. (See my previous Huffington Post coverage, Green Cards for Sale? Atlantic Yards Backers Seek Chinese Investors and Anatomy of a Green Card Pitch: In China, Atlantic Yards Backers Rely on the Distraction of Basketball.) Reuters, in "Special report: Overselling the American dream overseas ," pointed to numerous problems in this essentially unregulated program, in which businesses and developers seeking cheap capital compete to recruit immigrant investors, who must park $500,000 in a purportedly job-creating investment in exchange for green cards for themselves and their families. Many would-be immigrants don't get their green cards. Many don't get their money back. And many are misled by immigration brokers pimping the investment projects. And some of the regional centers--the federally-authorized investment pools that market the projects--are quite shady. Brooklyn project under scrutiny One poster child: the New York City Regional Center's (NYCRC) promotion of what they dub the Brooklyn Arena and Infrastructure project, an effort to raise $249 million for developer Forest City Ratner's $4.9 billion Atlantic Yards project, saving the developer perhaps $191 million. Reuters, having attended a session for potential investors in Seoul, South Korea run by a local immigration broker, seemingly nailed the NYCRC on several misrepresentations: that investors need not worry about getting green cards that investors would be financing a new arena in Brooklyn for the National Basketball Association's Nets that the government of New York State is involved in the project being presented None are true, as I've documented. The next astonishing thing is this: In a subsequent interview with Reuters, George Olsen, managing principal of the New York City Regional Center acknowledged the claims were "not accurate" - the investors will finance the rebuilding of a rail yard and some related infrastructure near the new basketball court -- and promised he would jump on Kookmin "with two feet." "But that's what's frustrating," Olsen said. "You can't be at every seminar, you can't be at every meeting, you can't be in the room when one of these people is talking. To raise $100 million, you have to get 200 investors. That's a lot of people. So there's a certain amount of mass marketing that has to go on. That's bogus, and it's too bad Reuters let him get away with professing to be shocked, shocked. And it's too bad Reuters didn't investigate other issues regarding EB-5 and this project: the questionable assertions regarding the safety of the NYCRC investment the questionable role of the law firm working for the NYCRC and investors the federal government's apparent unwillingness to police dubious claims of job creation NYCRC on tape The deceptive statements highlighted by Reuters and explained away by Olsen have been made by the NYCRC's own principals in a project video, the audio of which I reproduce on my blog today. And the same statements have been made by the NCYRC's point man in China, Gregg D. Hayden, during investment seminars and webcasts there, as I've described. (Here's an FAQ summarizing the series.) It's on video, too. "The project itself involves three components," Hayden said (at 1:33) in a webcast produced by a Chinese immigration consultantcy, excerpted below. "The Brooklyn arena; the related infrastructure to the lands; and the redevelopment and expansion and upgrading of the [city's] third largest transportation hub, in Brooklyn, called the Atlantic Terminal." "The first major advantage is that the approval process, from USCIS, having already been accomplished, takes all of the immigration risk out of the process for the EB-5 investor," Hayden claimed in a webcast (below) at 1:00. "[O]ur job creation, which is the focus of getting the condition removed in two years, is so extremely certain with this approval process from USCIS," he continued, at 4:25. Government involvement? Reuters caught the NYCRC's agent in another deception, but let Olsen get away with excusing it: The agent from Kookmin, for instance, said during the Seoul sales presentation that the government of New York state was involved in the rail yard project. Olsen said that claim was inaccurate as well. But such claims get made over and over again -- especially outside the United States. Actually, they've been made by the New York City Regional Center itself, which has promoted the role of city, state, and borough governments in the arena project. Consider the cover of the NYCRC's project brochure at left, which misleads in two ways: it puts the arena front and center, while including the seals of both the state and city of New York. The NYCRC was willing to pay travel expenses for Brooklyn Borough President Marty Markowitz to visit China. (Markowitz backed out but lied on tape for the NYCRC that "Brooklyn is 1,000 percent behind Atlantic Yards.") In its own newsletter, the NYCRC stated: The NYCRC is pleased to announce another project in conjunction with the governments of both the City of New York and State of New York. The same claims were made in the video shown to potential investors, as well. Regional centers frequently try to get local officials to accompany them, as potential investors, especially in countries like China, can be impressed by the suggestion of an official government role. Eagerly cooperating, the Empire State Development Corporation, New York State's chief economic development agency, even paid to send Executive Director Peter Davidson to China, where he made astonishing claims about job creation for the arena project. More misleading promotion The page below left from the project brochure is headed "Government Support" (according to a translation I commissioned), with the first line stating, "Different levels of government agencies have already approved the key components of the project." However, that refers to the overall Atlantic Yards project, given that the "Brooklyn Arena and Infrastructure Project" did not exist when government agencies considered the project. The second page of the brochure states that the NYCRC, along with the city and state governments, "join hands together" to announce the project. Neither the city nor state government is a formal partner with the NYCRC in the project as presented to the Chinese investors. Each has made previously-funded subsidy commitments. In the opening of an EB-5 event in Beijing, as shown on this video , Hayden saluted Chinese partners by saying, "For the State of New York, for the City of New York, and on behalf of all of us in New York, we appreciate your strong efforts." That also could leave the impression of partnership. Later in that event, he said, "As you saw in the [official project] video, we have very generous support from the governmental agencies of New York City and New York State; specifically, in the video, you heard [Mayor] Michael Bloomberg talk about job creation and how important it is to New York City." However, government agencies have not invested in the regional center, and Bloomberg was talking about job creation for the Atlantic Yards project as a whole. Conflict of interest for lawyers? The Reuters report also suggests that attorneys may face a conflict of interest: Another big problem with the program: The attorneys the immigrants rely on as they navigate the EB-5 maze in the United States are often deeply conflicted, accepting commissions from the businesses they steer the immigrants to. It's a practice the lawyers do not always disclose and one that may violate U.S. securities laws. I've tried to explore that issue regarding the role of the Ithaca, NY law firm Miller, Mayer, which represents the NYCRC as well as immigrant investors, and may be the leading firm in this narrow specialty. None of the lawyers there would respond to my queries, including Stephen Yale-Loehr, described by Reuters as "the unofficial dean of the EB-5 bar." Think about it: if such a top law firm has behaved questionably--check out photos of Miller, Mayer attorneys at basketball-centric investor sessions, or a video of an attorney talking about "this very exciting NBA arena project"--then how much regarding EB-5 doesn't deserve scrutiny? Yale-Loehr told Reuters, "No. 1, it's a win for the U.S. businesses that might not be able to finish a project but for foreign financing." At least for the Brooklyn arena, that's not the case, as a state official confirmed the arena's fully funded. Reuters, which identified Yale-Loehr as an adjunct law professor at Cornell University Law School, did not cite his affiliation with Miller Mayer. While Yale-Loehr, unlike some of his colleagues, did not go on the NYCRC China trip, he appeared in a promotion (graphic below) by NYCRC affiliates touting the high-level personages associated with the project. Much left to investigate, including security of investment Reuters left readers with the sobering recognition that the two federal agencies that are supposed to oversee the EB-5 program--the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Securities and Exchange Commission (SEC)--are falling down on the job. They told Reuters they are unaware of any marketing abuses in the program. Maybe they're aware now, as Reuters documented several abuses. But even Reuters didn't look at another aspect of the Atlantic Yards: the safety of the investment. "The Brooklyn Arena and Infrastructure Project, your EB-5 investment program, is a $1.4 billion project," Hayden said at 2:58 of the first video excerpted above. "It involves a lot of government, over $740 million of government-related funding. The EB-5 funding, the $249 million we are seeking to raise in the China market, is only 17%, the safest, most secure portion of the capital structure, 17%... portion of the capital structure is the EB-5 portion." That could leave the impression the capital structure is a series of loans, with the EB-5 portion the safest. Not so. The direct government subsidies have already been allocated. Investors buying $511 million in government-authorized bonds would certainly be repaid first, as those bonds were presented to rating agencies, with the rating based on expected cash flows from the arena. No rating for the EB-5 debt has been announced, nor is it apparently secured by any specific cash flows. Rather, the collateral offered involves a mortgage on development rights to seven future towers on the development site. The fundamental issue: job creation Moreover, the Reuters series did not address one core issue raised in my series: whether immigrant investors deserve credit for job creation based on the entirety of the capital in the project, rather than just the funds they commit. Reuters brushed over the issue, referring to the EB-5 program's "strict job creation requirements" and noting, "The only thing [the USCIS] checks is that the U.S. businesses receiving the money create the jobs they promise." Not really. EB-5 investors must each create ten jobs for their $500,000 investments. If they invest through the growing number of regional centers, the job creation may be calculated via an economist's report, which applies a multiplier to the total amount invested. (It doesn't look terribly stringent. See the Lake Buena Vista Resort Village & Spa in Orlando, FL, for an example of a project in which each investor gets 1.5 condos and preserves ten jobs, since the job requirements have already been fulfilled. Next up is a timeshare project.) The problem in Brooklyn In the case of the Brooklyn arena project, the NYCRC tells would-be investors that their $249 million would be combined with well more than $1 billion already committed by government and private investors. An economic report commissioned by the NYCRC thus calculated that 7,696 jobs, far more than the required 4,980 jobs, would be created by the overall $1.448 billion investment. The USCIS has apparently vetted the NYCRC's overall job-creation methodology, but, as I've written, it does not look like the federal agency has looked carefully at how it would be applied regarding this project. After all, it's plausible that EB-5 investors deserve credit for job creation based on the whole pot of money--as long as their investment serves as seed money or "last mile" funding, thus crucial to a project actually moving forward. In this case, the Atlantic Yards project would go forward with or without EB-5 funding. The developer, Forest City Ratner, has signed completion guarantees for the arena and infrastructure. If this finagling--essentially endorsed by the city and state, as well as the borough of Brooklyn-- passes muster, what's to stop any developer from refinancing with immigrant investor capital and claiming job creation based on both the new capital and previously committed capital?

来源: 张哲瑞联合律师事务所 hooyou.com