TOP IMMIGRATION AT TORNEYS BELMA DEMIROVIC CHINCHOY F or close to a decade, Chinchoy has focused solely on representing high-net-worth individuals, entrepreneurs and multinational companies in the EB- 5, E-2, L-1 and EB-1 immigration categories. Chinchoy’s clients are diverse across industry sectors (real estate, technology, creative, and manufacturing) and countries of origin. She is frequently retained to counsel on investment-based cases in post-initial filing stages (RFE, NOID, denials) and in federal court litigation. Chinchoy is licensed in California. She is a member of the American Immigration Lawyers Association, Los Angeles County Bar Association, EB-5 professional organizations, and is a frequent speaker and professional trainer on EB-5 topics. HOW DO YOU THINK THE EB-5 PROGRAM SHOULD BE REFORMED? Program integrity, and specifically, prevention and increased prosecutions of fraud and increase in program protections for good-faith investors, is widely considered the key area of EB-5 MARK DAVIES IMMIGRATION ATTORNEYS EB5 INVESTORS MAGAZINE that requires reform. Integrity reforms, ideally, would include concrete fraud monitoring and enforcement steps that go beyond a mere requirement that RCs and projects have fraud prevention policies in place. On the program implementation side, investors are hoping that reforms include reasonable processing timeframes and a way to enforce the same without resorting to litigation in federal courts (unlikely to happen). In terms of sunset, the program is not likely to discontinued though a lapse is possible. WHAT NEW TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? The industry is waking up after a lengthy hibernation (only 114 investor petitions were filed between January and September 2020, and there were hardly any IV Consular adjudications in 2020). The investors seem encouraged by the recent change in the U.S. presidential administration as well as more favorable investment terms of current offerings. Federal litigation continues to see a lot of activity from stalled adjudications, which, in my opinion, continue to be the key deterrent to new EB-5 investments. IMMIGRATION ATTORNEYS EB5 INVESTORS MAGAZINE M ark Davies is the founder of Davies & Associates, a law firm dedicated to assisting investors and businesses relocate and grow internationally. Davies has served as investor counsel to leading investment banks and financial intuitions from every continent except Antarctica. He combines this legal experience with an MBA (real estate finance) from the Wharton School of Business together with “ivy league” law degrees from the U.S. and the UK. Recognized by the Bush White House for his service to the U.S. legal profession and the author of legislative reform proposals commissioned by the UK government, Davies has also served as Chairman of Lawyers without Borders and sat on multiple other boards for profit and non-profit organizations. HOW DO YOU THINK THE EB-5 PROGRAM SHOULD BE REFORMED? Issues that have proved problematic in projects that were easily detectible given proper legal due diligence include but are not limited to: Normal Real Estate and Lending Law Due Diligence: Problems with title and encumbrances on title not fully explained in a PPM, huge technical legal issues in inter-creditor agreements 30 EB5 INVESTORS MAGAZINE placing investor capital at risk, “pre-leased” construction where the lease has so many escape clauses for the tenant that is really isn’t a “pre-lease”, and project lacking proper construction permits. Brokers: Should be required to disclose their fees to clients. Unsophisticated foreign investors are unaware of the lack of training and expertise in this area. Better licensing is required, such as imposing a CFA qualification on EB-5 brokers. WHAT NEW TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? We have seen a recent focus at USCIS and DOS on compliance with foreign currency exchange laws. In some countries a failure to follow these laws may constitute money laundering and bank fraud under U.S. law. Over the COVID period, our firm has been approached by a number of clients whose cases are the subject of RFEs and NOIDs in this area. Some clients are under criminal investigation by foreign regulators and claim that they were told to remit funds to a Regional Center by theirimmigration lawyer in a manner that clearly contravened applicable non-U.S. law. This is one area where problems can be avoided with proper structuring that allows for compliance with both EB-5 law and the applicable non-US regulations.