Wednesday, August 28, 2013

How can an EB-5 visa seeker identify a crook who intends to defraud EB-5 visa investors? What is the safest and easiest way to get an EB-5 visa?

It is quite common for EB-5 visa seekers to encounter unethical and unscrupulous individuals who intend to commit fraud against EB-5 visa investors. Earlier I used to encounter crooks only in the regional center business, but now I'm seeing them proliferate even in the Direct Investment business.

The very FIRST thing an EB-5 visa investor needs to do is ask for a notarised affidavit signed under the penalty of perjury from anyone offering them EB-5 visa related services as well as the CEO, CFO and Attorney of the regional center / partnership / franchise offeror affirmatively stating that:

a) All material information has been disclosed to the EB-5 visa seeker. If material information is not being fully disclosed, then the service provider are probably engaged in FRAUD, Wire Fraud and SECURITIES FRAUD, and EB-5 visa seekers as well as honest immigration attorneys and visa consultants should avoid them like the plague. Prime examples are master franchisees selling third rate franchises to EB-5 visa seekers instead of selling good quality franchises that are a lot safer.
b) The partnership / corporate entity / regional center is in FULL compliance with US Securities, tax and foreign exchange laws as well as the laws of the country in which the securities are being sold. If the partnership / regional center is violating securities laws, tax laws or foreign exchange laws, the EB-5 visa will most likely be revoked or denied, and the funds will be seized and may potentially be subject to forfeiture.
c) The regional center procures products and services in a competitive and transparent manner, and does not engage inconflict of interest and nepotistic (related party) hiring. A prime example is an immigration advisor selling Voodoo franchises without clearly disclosing the underlying relationships as well as the availability of safer and more lucrative options.

If a Partnership's / Franchisor's / Regional Center's executives REFUSE to present the above information in notarized affidavits to investors, EB-5 visa seekers should AVOID their offering because the potential for fraud is extremely high.

EB-5 visa seekers should also ask partnership / franchise / regional center executives and attorneys to answer the following questions in a notarised affidavit signed under the penalty of perjury, answering each question separately:

a) How long has the Regional Center / partnership / franchise been operating?
b) How much of a capital loss have investors seen (minimum, maximum, median and mean)?
c) What is the exit strategy and how much will it cost investors to exit and is exit mandatory only through related entities?
d) Does the Regional Center / franchise project / partnership have a STRICT arm's length policy for procurement of products and services in a competitive manner? If the answer is no, avoid them!.
e) Do they regularly offer audited books of accounts for review by investors?
f) Have they ever faced any criminal investigations or lawsuits?
g) Are they in full compliance with tax and securities laws in the US and country of offering?
h) What is the annual dividend? Is it paid regularly? Is the dividend enough to let the investor and his / her family live comfortably or is it below what even a bank would offer?
i) How long is the investment locked in and can investors exit right after they get the I-829 approved or are they locked in for 5-9 years?
j) Do investors have a right to kick out corrupt or incompetent managers and employees?
k) How much are their fees and what is the breakdown? This is to identify the junk fees.
l) What is their money back policy?
m) How much equity have the promoters invested and how much money (salary / share of profits / benefits, etc.) are they getting?
n) Are officers and directors hired in an objective and competitive fashion or do they hire related persons such as girlfriends, friends, wives, nephews, etc.?
o) Have investors ever exited with a capital gain?

I believe the above affidavits should be a good starting point to detect and prevent fraud committed by regional centers / partnerships / franchise marketers. Those entities that don't disclose all material information or engage in conflict of interest and nepotism should be avoided by EB-5 visa seekers. For more information on how to get the best results for EB-5 visa seekers, please add me to your network and join my group 'EB-5 visa - Direct Investment Business' on LinkedIn.

EB-5 visa seekers should do careful research that a franchise being suggested to them has a long and successful track record as opposed to a newer franchise with few stores and a not so impressive record, and should ensure that their negotiations are conducted directly with the franchisor in order to avoid getting cheated. We usually advise our clients to be present in the US when we negotiate, but in case of clients who're unable to come here, we diligently and transparently represent our clients when negotiating with franchisors and lenders, and usually cc our clients on emails and conference them in on calls with banks, franchisors, attorneys and accountants in order to ensure that there is total transparency in the process. As the saying goes, "sunshine is the best disinfectant."

Proven franchises or unfranchised businesses with proven business models (i.e. used car businesses, sports academies, etc.) are usually good business opportunities. Risky businesses or franchises with weak track records aren't so good.

EB-5 visa seekers and immigration attorneys need to ask probing questions that will help them separate the newcomers and dishonest people from the honest and ethical people.

Here are some questions that can help EB-5 visa seekers and immigration attorneys make better informed decisions:

For EB-5 visa seekers interested in Direct Investment Business, the following questions are crucial:
1) What is your role and how are you qualified to fulfil that role?
2) What is the license you hold and how does it qualify you?
3) What is your practical experience in EB-5 visa? How many clients have you helped so far and how long have you done so?
4) What is your track record? Have your clients experienced capital loss, visa loss or operating loss?
5) What do you do to help me avoid getting defrauded?
6) Do I fully own and control my business and capital?
7) What is the exit strategy?
8) What is the typical approval time?
9) Are you willing to offer a notarized guarantee saying that you will fully disclose all material facts in an ongoing manner and refrain from engaging in conflict of interest?
10) Do you offer a turnkey solution?
11) Do you expect me to pay for your mistakes, or will you refund my fees in case I'm denied due to your negligence and / or incompetence?

Critical questions to ask of a regional center / partnership / franchisor CEO and CFO:
1) Are you willing to offer a notarized guarantee confirming that you will fully disclose all material facts in an ongoing manner and refrain from engaging in conflict of interest?
2) What is your practical experience? How many clients have you helped so far and how long have you done so?
3) What is your track record? Have your clients experienced capital loss, visa loss or operating loss?
4) What do you do to help me avoid getting defrauded?
5) What is the exit strategy?
6) What is the typical approval time?
7) Do you fully comply with the securities laws of the US and overseas jurisdictions where you offer and sell securities?
8) Will you refund my fees in case my petition is denied due to your negligence or incompetence, or am I expected to pay for your mistakes?

An honest service provider will never expect a client to pay for the mistakes and negligence of the service provider, and will always agree to fully disclose all facts. We believe in honesty, transparency and accountability, and we always put our client's interests ahead of our own.

EB-5 visa seekers should remember that it is a lot quicker to gain approvals for I-526 petitions on basis of Direct Investment Businesses, while petitions filed by regional centers have been languishing for a year or more. They should also remember that there is a massive interagency investigation by DHS, SEC, IRS and FBI, and it is expected that over 98% of the regional centers will be shut down for violating securities laws and committing securities fraud. There was a very interesting conference call that USCIS and SEC had in April 2013, where SEC announced that they're going to take strong action against regional centers and partnerships that violate securities laws such as broker dealer registration, investment company regulations and failure to disclose material facts.

The above is my opinion, PLEASE consult a qualified attorney for advice to confirm that the above is correct.

Yours truly,
Mohammed Shaikh, MBA, CFE, Licensed Business and RE Broker (CA and FL)
Phone: +1 407 535 0616

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