Robert Divine, former acting director of the USCIS, now runs an immigration practice group at law firm Baker Donelson. In this episode, Robert discusses with host Ali Jahangiri the implications of the RIA Act on the EB-5 program going forward. How do these changes affect EB-5 investors? How much will more attractive will these changes make investing in projects in rural or high unemployment areas? Are Regional Centers going up for sale or going out of business?
Robert: Pay a lot of attention to what is this project that you're getting into. Is it likely to be successful? Does it have a capital stack that's lined up? Is it something that's likely to create the jobs that are needed? Have these people done this kind of business before successfully? Those are basic fundamental investor concerns, but they're very real. A lot of people have lost a lot of money on EB-5 deals because they paid more attention to what some broker said who was getting a huge commission than on the fundamentals of the business they were investing in.
Ali: This is the “Voice of EB-5”, by EB5investors Magazine. Each week, we sit down with experts in the EB-5 investment space to get valuable insights and the latest EB-5 news. Welcome to the "Voice of EB5 Podcast" by Ali Jahangiri, that's me, Founder of eb5investors.com. I'm sitting here with a good friend of mine, Robert Divine. He's a, give you a little background about his past, Robert Divine actually was the acting director of the USCIS for a little bit and was the chief counsel for three years.
He was intimately working with them and representing them, and he's also sat on the IUSA executive team for seven years. He currently has an immigration practice group at Baker Donelson, and he runs their immigration practice there. Robert is a thought leader in the industry, is one of the guys who you wanna ask questions of, so I'm really happy and honored to have him here. Robert, welcome to our podcast here. Good to have you.
Robert: Thank you, Ali. Good to be here.
Ali: Going into, just to start off the podcast by talking about your practice, so people know what you do. Can you kind of give a summary of currently your day-to-day scope with the EB-5 space and what you do?
Robert: Thank you. First, I would just say something I'm proud of that you didn't mention is having written a book on immigration law called "Immigration Practice." That was in its 15th edition the last time I edited it.
Ali: I actually saw that. I only had a couple minutes, I should have said that. You're right.
Robert: No problem.
Ali: Yeah, I wanted to jump right into your current practice in EB-5 because we have a lot of developers listening to this and a lot of agents, and regional centers, and other constituents. So, I kind of want them to know what you do.
Robert: Thank you. We really do all of EB-5. I'm in a full-service practice with almost 700 lawyers, so we have a lot of support to do the full range of things. So, we represent regional centers in applying for regional center designation and sustaining and maintaining their designation, and filing updates, and buying and selling, and renting and leasing rental regional centers to participating developers.
We represent developers who are putting together projects. We syndicate securities offerings for parties who are organizing EB-5 securities offerings and investment offerings to investors. And we represent investors who are choosing to participate in EB-5, making the investment, and applying for Green Cards for themselves and their families based on that.
The one thing we don't do is advise investors about which investment to pick for two reasons. One, because we're not licensed as broker-dealers or investment advisors with the Securities and Exchange Commission. So, that's not a good practice to get into something you're not licensed to do. And also because we're attorneys, and our attorney malpractice doesn't cover liability from giving investment advice.
So, I never ever advise somebody about which thing to invest in. I can talk to people about what to think about, what kinds of things are generally good to think about and questions to ask parties that they're thinking about investing with, but I'm not gonna get involved in choosing one or another.
Ali: That makes sense. Yeah, it's obviously a tough thing to do when you're dealing with investors about these projects. What's kind of your bread and butter in terms of your personal practice? Is it mostly working with developers, or is it on the actual immigration side with the immigrants?
Robert: With the investor representation, I work with the investors originally and talk about the big picture. When it gets down into the nitty gritty of documenting where their money comes from, which is 90% plus of what we need to do with them, we have a team of lawyers and paralegals who just grind that out. It's a very detailed-oriented process that requires just a tremendous attention.
Ali: Yeah, you know, I knew that you obviously can't say everything because you're probably under some kind of NDA that lasts forever. But as far as what you can say, what's the general feel over there on this program, and what was the feel there when you were part of it on the program? And, why is there so much back and forth, like the Behring case, and why is there so much heat between the immigration world and USCIS?
Robert: Well, we have a tendency to imagine bad intentions when we get bad treatment from USCIS. I don't think it's usually really the case. Usually, USCIS folks are tied up in trying to apply the law as they understand it. And, of course, there are a lot of unclear things in the EB-5 law, and so adjudicators are probably looking for supervisory guidance, and the supervisors are super busy and stretched and getting transferred to this job or another. And so there's just a general lack of clarity about the rules. And as long as the rules aren't clear, then nobody can adjudicate their cases very efficiently.
Ali: Well, that law was passed, and then they said no more regional centers. What was your take on that?
Robert: My take on that was not the one they did. I actually sent a white paper. I sent a white paper to folks at USCIS saying, "Don't do this. This is not the right decision. You need to figure out a way to give previous regional centers credit for the geography that they have previously established and let them just show that they have made the policies and procedures that the new law requires and that they make the certifications about compliance that the new law requires, and let's get on with it." They chose not to do that, and now a lawsuit has essentially accomplished the same thing.
Ali: Yeah. No, I'm happy you sent that white paper. I didn't know you did that.
Robert: Well, but I believe that the position they took is because that's the way they read the law. And it's not they're trying to be mean, they just read it technically and literally the way they did without thinking about the bigger context of this situation, where Congress wasn't meaning to completely start a new program out of nothing. They were striking out the old law but replacing it with a new law that said much the same thing and they expected it to carry on.
Ali: One of the things that people have always kind of wondered about, and it's, why did it change from INS to USCIS? Why was that change made on the name?
Robert: That was done by the Homeland Security Act. So, after 9/11, the idea was to try to put a lot of the agencies that deal with national security into one department and grab them from a bunch of different departments where they were. And so immigration was deemed to be part of that. So, it was taken from the Department of Justice where it was called the Immigration and Naturalization Service with all of the components of adjudication and guarding the border, and kicking people out.
And those were placed into the Department of Homeland Security. And in the process, Congress decided to separate it into three pieces. So, USCIS making Visa and citizenship and permanent residence decisions, and CBP guarding the border, and ICE kicking people out and doing a bunch of other things.
Ali: So, would you say the INS was a bigger organization then they got divvied up into three separate departments?
Robert: I don't know that it was any bigger before or after. It just was organized differently.
Ali: So, there was directors that were created for each, the ICE, and all these other groups, whereas before it was just one group?
Robert: Well, they really were separate components inside of the old INS that USCIS was called adjudications. They all had their different spheres there. They all reported to one commissioner of the INS. Under Homeland Security, they all reported to the Secretary of Homeland Security. It's just that the Secretary of Homeland Security had 19 other direct reports from other components of the department. So, you know, somebody's gonna eventually say, you know, "We really ought to have all the immigration components reporting up to one commissioner of immigration inside of Department of Homeland Security. Could be done tomorrow, wouldn't be a bad idea”.
Ali: That's super interesting. So, the other question I had is, so, you know, we increased the regional center fees on the RIAA Act. Do you think this is gonna help the budgeting component for them to expedite things quicker? What do you think this actually does when you increase the fees and the dues on a practical basis to the department?
Robert: Well, so far, they haven't increased the fees that regional centers pay. The application fee is the same today as it was before, but there's going to be more annual fees. That annual fee is supposed to go into a thing called the integrity account, and that will be used to do a whole bunch of auditing, and onsite visits, and things like that. So, that's the main thing you're gonna see different. They are supposed to try to revise their fee structure to charge the amount of money that will allow them to adjudicate on a much more timely basis.
Ali: There's a $17,000 fee, I think, and change for a regional center, correct?
Robert: Yeah, it's basically $18,000. Yes.
Ali: Was that the same fee as before, or is that new?
Robert: Yeah, it's only the same because they haven't gone through the process of figuring out what it costs them to adjudicate these things. So, they didn't have to do a new regulation and all this process to keep using the same fee as before. So, that's what they're doing with the regional center application and with the investor application.
As of October, they're gonna add another fee, like a $1,000, that they're allowed to by statute. But they'll, meanwhile, do what they call a fee study where they have to take this painstaking analysis to determine how much it costs them to do these different adjudications and then figure it out and charge everybody their share of that.
Ali: So, when you talk to a developer, a regional center owner, when they say, "Hey, have the regional center fees increased," what do you say to that? So, right now you say they haven't, right?
Robert: Right. So far, they haven't, but the annual fees will be higher. They'll be either $10, 000 or $20,000 higher than before because of this integrity fee per regional center.
Ali: So, would you say that's only the cost that goes to running a regional center that's extra? Is that $10,000 to $20,000?
Robert: No, so far.
Ali: So far.
Robert: But there's the cost of doing a bunch of compliance and taking more steps to make sure that everybody involved in an EB5 deal is doing what they're supposed to be doing, and most importantly, that the money is being handled the way it's supposed to be handled. But they're going to be higher fees once USCIS does a fee study and figures out what it's gonna cost them to do these cases quicker.
Ali: Got it. So, do you think the costs went up? And I say this because it's always regional centers are saying that they're spending more. So, do you think the costs went up by 20%, 30%? Well, if you were gonna guess, what do you think the cost went up? Someone wants to ask us and wants to know this answer.
Robert: You know, I don't run a regional center, and I really can't tell you a great comparison. But I would say maybe, I mean, somebody's gonna pay for the monitoring of the money that's changing hands. Some people were doing that before using fund administrators, third-party fund administrators. That's gonna have to be done now, and that's costing money.
Ali: But that's separate from the regional center's duties, right? Isn't that just a requirement, or is that part of the regional center duties to have a fund administrator?
Robert: No, I'd say somebody's gonna have to pay. Usually, it's gonna be the new commercial enterprise, the party that takes in the EB5 investor money and looks after how that money is spent. That's usually gonna be paid for by the new commercial enterprise who ultimately pays, whether it's investors with higher administrative fees, or annual administrative fees, or coming out of the money that the NCE gets from the job-creating enterprise will be different among different parties.
I mean, those costs will be allocated differently. There's no exact way it has to be done, but it has to be done. The regional centers then need to make sure that all those things are in place. It's more of just monitoring and making sure everybody's doing what they're supposed to be doing.
Ali: Yeah, so I guess there's more cost, basically, for the regional center.
Robert: There is more cost. How much, it's hard to say.
Ali: Are you noticing the regional centers, since you're in the mix, and yet talked to a lot of regional centers, are you noticing the regional centers are trying to sell their positions more? Are they trying to potentially just stay in the business more? Have you seen a lot more transactions?
Robert: My experience is that there are a lot more people out there trying to buy regional centers than trying to sell them right now.
Ali: That's interesting. And do you ever get calls for people that wanna buy and say, "Hey, you know, Robert, can you introduce us to someone that wants to sell?"
Robert: Absolutely. I'm doing about 10 deals right now.
Ali: Oh, wow. So, if you can give us the range if possible of what you see these deals at, is it like 50 to 200? Is it like a 100 to 200? What's the range you're seeing?
Robert: We're really just starting to see this play out. I've seen a few go for pretty small like that. I've seen some go for the higher end of the range you said or maybe even higher.
Ali: Okay. I got a call the other day as well EB5 investors did about regional centers and trying to buy and sell them. Robert, is that something that's pretty easy on your end to take care of and handle? What documents do you kind of deal with that on? Is it just a transfer of a corporation, or how does that work?
Robert: Yeah, the buyer has to buy the entity that has been designated. You can't buy the assets and not the liabilities. You have to just buy the stock or the LLC interests of the entity that has been designated by USCIS. So, you're just buying interests in a company, selling interest in a company, and it's a typical purchase of a company.
There's a purchase agreement that needs to recite a bunch of things that the seller is attesting to warranties and covenants about what the situation is of the thing they're selling, and there's an effort on the part of the buyer to perform some due diligence to double check all the documents they can get their hands on to make sure those representations seem to be accurate and to assess the potential liabilities.
I mean, if a regional center that's being sold has had some trouble with USCIS, that decreases the value, increases the risk. If the seller has sponsored projects, most people are not wanting to buy a regional center with baggage so that becomes more complicated. But those are the risks that can be managed and dealt with and discounted. So, there's a lot that goes into it. But, I mean, ultimately, it boils down to a purchase agreement.
Ali: So, if I came to you tomorrow, Robert, and said, "Hey I wanna buy this regional center," how much work goes into one of these things? Is it very complicated, or is it pretty simple?
Robert: Well, in a completely clean regional center that hasn't ever done anything, it can be pretty simple. It could be done in several days.
Ali: Several days. And is there a way that you can do the diligence and help them find out if there's any blemishes on the regional center?
Robert: Yeah, it's what we do all the time.
Ali: If you're representing me, I'm a buyer, and the seller has a failed project within a...say, the regional center has six projects and one of them was failed. Would you tell me not to buy it, or would you...?
Robert: I'd say we have to get all into, what's the situation with that failed project? I mean, was it something unexpected and nobody made any misrepresentations about things? That may be less of a problem. I mean, there's a reputational harm from a failed project, even to a regional center that didn't have anything to do with the project itself.
Ali: You mean less likely to raise money after that?
Robert: I mean, regional centers don't necessarily raise money, they sponsor things. And the parties who are selling the investment technically are the ones raising the money, but sometimes the regional centers get involved in, actually, operating the new commercial enterprise and raising the money. So, there's a whole range of types of involvement. I can't give you a formula for the implications of things like that. That's something we've got to walk through.
Ali: Do you think there's gonna be more regional centers for rent or less after these new provisions?
Robert: I think that more people who want to operate, who want to do deals will be less interested in renting because they'll be concerned about falling in a hole because something goes wrong with the regional center they're renting from. That may have to do with something completely unrelated to their project. So, they'll wanna buy a regional center.
There's more interest in buying right now than renting. Once there aren't any more to buy, then people either have to rent or get their own approved. And that's all about how long it takes to get a new one approved, and nobody knows what time that takes because nobody has even gotten past square one on an application they've filed under the new law.
Ali: Got it. Thank you for this info about regional centers. This was in line of the business, the kind of business you do. Let's switch gears to maybe rule versus TEA. I kind of wanna know, in your opinion, let's look at a crystal ball and look out a year from now when we're, once again, out in the foreign countries and we see investors coming in. Do you think the rule's gonna be 50%, 60%, or you think it's gonna be a smaller portion of the market or a bigger portion?
Robert: Most projects are gonna be high unemployment TEAs. There will be plenty and more than before of rural projects because the law gives a new and special benefit that can be hugely advantageous for an investor who, otherwise, will be subject to a wait for a Visa number. So that mainly means China. So, the only people who currently are facing the waiting list for Visas for categories that don't have a Visa reserve under the new law are people from China.
So, people from China are really interested in investing in a rural project because they're hoping that by doing that investment, they jump ahead of all of the people already in the queue from China who have been in what looked like a 10 or 15-year waiting list for a Visa number. So, that's a huge benefit. What we don't know is how long will it take for the numbers for that benefit to be used up. It's not unlimited. It's 20% of the Visa numbers per year, and there could be a lot of people signing up quickly.
The other question is, how long will it take to find out that those numbers are used up? The way the State Department works, it really doesn't have an actual effect and stop people from at least applying for adjustment of status if they happen to be in the U.S., as long as a cutoff date is not shown in the Visa bulletin. And the State Department doesn't put a cutoff date in the Visa bulletin until they see more people queued up ready to be approved for a Visa number either in their own system or in the USCIS system for adjustment status.
And if USCIS takes five years to adjudicate the new filings for investors, then it might be five years until we find that out. Now, they're supposed to give priority to processing for investors in rural areas. We don't know what that priority processing will look like, but essentially that's gonna be quicker. So, let's say that's a year instead of five. So, maybe within a year or two, enough people would be queued up from these early filings that are starting to happen or gonna start happening any minute.
There could be approved 526s or people who invested in rural areas that could use up somewhere between 2,000 and 4,000 Visa numbers that could be available at any one time. We just don't know how quickly that's gonna happen. But until it shows up on the Visa number, somebody who files out I-526 as an investor and who is here on a temporary Visa can file for adjustment of status and start enjoying the benefits of being a permanent resident before they ever get their 526 approved. That's a huge, huge thing.
The people who are about to benefit the most from this are people from China who are in the United States, who invest in a rural project or a high unemployment project. This is available right now for either, or an infrastructure project. There's no cutoff date in the Visa Bulletin for any of those. So, if they invest and they're here on a temporary Visa, they can file for adjustment of status and start living and working here just like almost a permanent resident could.
Ali: Does that mean there's no backlog, Robert, or...?
Robert: Well, there is no backlog right this minute because almost nobody has filed. But we won't know... Once there is a backlog, it will be hidden in USCIS backlog of adjudication of I-526 petitions. Does that make sense to you?
Ali: Yeah. Do you mind explaining it to me? So, this wasn't the case a couple years ago.
Robert: Well, think back to 2015 when there was no cutoff date shown in the Visa Bulletin. But I remember I had determined that it looked like there was about to be because there were enough numbers spoken for by all the people who had been filing 526 petitions for so long and were gonna be approved and were gonna start actually using up the numbers. And so I started writing articles and telling people, "You gotta tell investors that they may have to wait some years." And you may remember Bernie and me having these arguments at various conferences about this.
Ali: Oh, yeah.
Robert: And I was saying something that turned out to be true. Bernie was saying that he hoped it didn't happen. Well, I mean, I appreciate optimism. But when you're advising investors about the risks of their investment, I think you need to be careful. So, I think people offering investments need to be careful about promising people they're gonna get a Visa number based on a rural or a high employment investment for sure because we don't know how quickly these numbers are gonna get used up, and it's complicated.
Ali: So, it's a good time right now, if you're Chinese or anyone, to be exact, to change your status, file EB-5, and change your status immediately because that means you could stay in the U.S., right?
Ali: How many days between the moment you invest and changing the status does it take?
Robert: You invest, you gotta file the papers to show that you invested, and where your money comes from.
Ali: Let's say you get a receipt. See, I'm an investor, I get a receipt.
Robert: Well, I can file the 526 and my application for adjustment of status for the Green Card at the very same time, same day, same envelope.
Ali: Oh, wow. So I'm a student, I'm living here. My parents file the paperwork, they help me file it. So, I filed a 485 and the 526 at the same time.
Ali: And I'm going to say I'm going to, you know, USC here, I'm 19 years old, and my parents helped me file that in. How many days from the moment I send that in to the fact that, you know, I get my conditional residency approved?
Robert: Okay. So, if the kid is here and is the investor, then the kid can file and can apply for adjustment of status in the same envelope.
Ali: I see. But in all practical purposes, I'm assuming the kid doesn't have $800,000 or $850,000 to pay for the admin and... Can the parents just lend the money to the child or donate and give it as a gift?
Robert: They can certainly give it as a gift. They're gonna have to show where they got it. They'll have to show, as if they were the investor, they'll have to show that they obtained that money legally and not through drugs, sex trafficking, or whatever.
Ali: But let's see this like aging out thing that people keep on talking about if you can clarify and help me understand this better, Robert, because I'm not an immigration lawyer. So, how does that work when if the child was, call it 17 or 16 when they apply, and their parents applied, obviously, their parents applied...
Robert: That is only an issue when the child is not the investor and the parent is the investor, and the child is going to derive permanent residence from the parent getting permanent residence as the investor, okay?
Robert: So, in that case, the child needs to be under age 21 under the rules at the time that permanent residence is granted.
Ali: It's not 18, it's 21?
Robert: Under 21, yes. But there's a law called the Child Status Protection Act that basically, most of the time, means that if the child is under 21 when the parent files the I-526, all will be. But that's not true. If the parents are going to end up having to wait for a Visa number after the I-526 is approved, in that case, the child's adjusted age that was locked in at the time the 526 was filed resumes increasing once the 526 is approved and keeps increasing until a Visa number becomes available.
So, if the kid was 17 when the 526 was filed, it gets approved after a year and then they wait six years to get a Visa number, the kid became adjusted age over 21 and loses out, ages out. But it's fairly rare. It definitely has happened to some Chinese people who had to wait a long time under the previous law, and a lot of people who gave the money to their kid and let the kid invest instead.
Ali: Because that would not happen.
Robert: Right. No risk of aging out.
Ali: Because if the kid's a minor, then the kid can't apply?
Robert: Well, they're worked out various workarounds to that, most importantly being using the Uniform Transfers to Minors Act, where the parent can invest the money for the kid and remain the custodian for the investment. And then when the kid turns 18, then they take over.
Ali: So, there's a workaround that, anyway.
Robert: Yes. We have succeeded in those workarounds in the past.
Ali: Add one more question to it. Okay. So, Robert, as far as the market goes, that if I'm a brand new developer that gets into the business and you help me set up my regional center and build out a plan to go overseas, where should I be going as a developer right now? What do you recommend? Is it go overseas to China, go to India? What is your recommendation?
Robert: Well, I don't really advise people big time on how to go find investors. My observation is, and when you look at the data, I mean, people are coming still significantly from China, even though the wait has been very long, and now it's gonna be more as they are able to step up for reserved Visas. And India, I think is close in number two or maybe even number one. And so Korea, Taiwan, Vietnam, and Vietnam actually should be up higher on the list, and Venezuela, places where a decent number of people who have a lot of money and who want, at least their kids to be able to live somewhere else.
Ali: Yep. So, developers and other folks that start regional center, what is their biggest bottleneck or factor? What do you get mostly of their problem in terms of getting into this industry and building out a regional center, and what do they typically say is their issues?
Robert: Ultimately, it's finding investors. I mean, if you're a capable developer, I guess there are two things. One is getting the rest of the capital stack and finding investors. And those are probably pretty connected. Because investors who are really thinking don't want to invest in something unless they know that there's enough money lined up to make it happen, and they won't be stuck in something that's not gonna happen.
Ali: So, it's finding investors is their biggest concern?
Robert: I guess that, and otherwise, just the constant challenges of development of getting permits and environmental approvals and design approvals. And I've seen projects locked up in issues like that for surprising periods of time.
Ali: Interesting. So, coming to your firm, if I said, "Hey, I had an issue on getting my economic report and all that lined up," do you guys have people you work with regularly that are quick at that and fast at getting that stuff done, the economical report, and the business plan, and stuff?
Robert: Sure, we do. There's an industry of business plan writers and economists who do these things, and they're generally amazingly proficient and efficient in getting it done.
Ali: So, we have a lot of listeners that, they're getting on the "Voice of EB5" and listening to this. Is there something you want to kind of give a last statement to the crowd?
Robert: I would say pay a lot of attention to, what is this project that you're getting into? Is it likely to be successful? Does it have a capital stack that's lined up? Is it something that's likely to create the jobs that are needed? Have these people done this kind of business before successfully? Those are basic fundamental investor concerns, but they're very real.
A lot of people have lost a lot of money on EB-5 deals because they paid more attention to what some broker said who was getting a huge commission than on the fundamentals of the business they were investing in, and pay attention to the immigration structuring of it that it complies with all the new rules. But I guess those are the most important things beyond the obvious.
Ali: That's a huge tip to the public. So, thank you for adding that value.
Robert: One thing you could add to that answer is that, one thing I'm very glad about is that we're probably not gonna have to worry as much about people mishandling and wandering off with EB-5 money because the new law does require this fund administration management. And I think that is a very positive development, really.
Ali: The fund administration component?
Robert: Yeah, requiring that an independent third-party makes sure that the money is getting spent properly as it comes out of the NCE account.
Ali: Yeah. But is that a more bigger picture, or does that kind of help with...? Is that kind of more fraudulent transactions, or do you think it'll help with the investment itself, like, determining whether the investment's a good investment? Does it have anything to do with that?
Robert: The one thing you just can't know is whether the party that's gonna get a hold of your money... I mean, one thing you couldn't know in the past was whether the party that would get a hold of your money would kinda lose their head and start doing crazy things with it. And I am just telling you that I was super surprised at how often that did happen in the old era. And the requirement of fund administration is going to greatly reduce that problem.
Ali: That's good that you brought that up. Well, I appreciate it, Robert. Thank you for being on the podcast and look forward to seeing more of you on the panels and more of you on air with us, so appreciate it.
Robert: Great to be with you. Take care.
Ali: This has been the "Voice of EB5" by EB5investors Magazine. To learn more about this episode, please visit eb5investors.com/podcast. To stay up to date with the latest EB-5 discussions, be sure to subscribe to the show wherever you listen to the podcast. And if you like the show, please consider leaving us a 5-star review, it helps us out a lot. See you next week.