How Investors Can Navigate EB-5 in 2022, with Attorney Bernard Wolfsdorf
On our very first episode, attorney Bernard Wolfsdorf, past National President of the 15,000-member American Immigration Lawyers Association (AILA) and an immigrant himself, talks to us about the present and future of investment in the EB5 world. Bernard has had a major impact on the practice of immigration law for over 20 years.
In this insightful conversation with Ali Jahangiri, he explains new program requirements since June 2nd 2022 and gives his insight on the Behring case.
Bernie: Those projects that offer big returns, I tell all my clients, "Run away." The issue in EB-5 is called capital preservation. All the good regional centers will pay a very small return, 25%, 50%. If you're looking for good returns, do not do EB-5.
Ali: Welcome to the "Voice of EB-5" by "EB-5 Investors" magazine. We will have provoking discussions every week on the EB-5 program, so please tune into our podcast. Welcome to the show.
This is Ali Jahangiri, founder of EB-5 Investors. Today, I'm sitting down with Immigration Attorney, Bernie Wolfsdorf, and we're gonna be discussing the new EB-5 legislation in 2022. Before we dive into the show, let me introduce our guest, Bernie Wolfsdorf. He's the Managing Member and Partner of Wolfsdorf Rosenthal LLP. He's one of the gurus in the space. He's got a big office in Santa Monica, he's got one in New York and Shanghai, and he's a good friend. He's been part of AILA for a long time and shared many different groups. He's known to be one of the experts in immigration law.
And I'll stop right here, and we're honored to have you on the show, Bernie. Welcome, and how are you today?
Bernie: It's really a pleasure to be with you today. And none of what you said is true, all of that is exaggerated. I couldn't be doing this 35 years, I would've started at age 10. So, I think that is grossly exaggerated. My wife doesn't think I'm very smart, but I'm gonna try and share some of my knowledge and information with you today, and I think your listeners will find this very illuminating and a little bit entertaining as well.
But we're gonna provide some valuable information today on the Reform and Integrity Act, which is the new EB-5 law that President Biden signed on March 15th, 2022. And I have to tell you it's a good law, we really like it. There's one or two things that could be done better, but by and large, this is a really, really good law. It's 100 pages long, don't read it, it's quite boring, but by the end of today, your listeners are gonna know everything about the EB-5 rules.
Ali: Well, Bernie, let's just dive into the first question. Let me provide a background to our audience regarding the new EB-5 law. Like you mentioned, March 22, Biden signed a new EB-5 RIA, Reform and Integrity Act into law. It's a pretty extensive reform, big in the EB-5 program. It increased the investment amounts to $800,000 in TAs and $1,000,050 in standard investments. Law also added some reserve visas and safeguards reporting requirements to regional centers. And one of the important...according to certain people is that the adjustment of status of the Green Card.
Bernie, what's your opinion on the new regulation, and what are some of the reforms that you found extremely helpful in the EB-5 industry?
Bernie: I think your summary is really very good. You hit all the key points there. First, let's just focus on this issue of the investment amount. It used to be $500,000 and $1 million, it's gone up to $800,000 and $1,000,050. Now, how do you qualify for the reduced amount? Well, quite simply, you have to qualify as a targeted employment area, you have to qualify as rural high unemployment or infrastructure, and then you can have the reduced amount of $800,000, which again, $250,000 difference, it's a whole lot cheaper. But the thing is, these could even be better because the rural reserved category is seen as a priority category.
Now, you hit on another absolutely important thing. One of the biggest problems we've had with EB-5 is delay. The 526 processing, getting appointments at consular, 526, of course, being the first stage of EB-5, oh, it's been taking years. And a lot of people are getting very frustrated, but this law has something, I'm gonna call it almost magical. And that is the ability to file concurrent Green Card. I call it one step, that's my favorite. And here's the reason why.
Let's assume you're in the United States on a tourist visa. You didn't come with a plan to apply for a Green Card, but you're in the U.S. on a tourist visa, you call Bernie Wolfsdorf, you say something like this, "I've been here for two or three months. I wanna do this EB-5 thing." And I can then convert your tourist visa through to a Green Card. I can file the 526 and the adjustment together, provided you didn't come with a plan to apply for a Green Card.
So, this includes people who are on F-1 OPT expiring, H-1Bs, expiring, student visas expiring, J-1 visas in some circumstances. And it's even better than this, not only can you file when you are in status, but they introduced 245(k). And what that means, is you can be out of status for up to 180 days, file in the U.S., and get your Green Card. I must say, I absolutely love this new requirement.
One more small point I wanna squeeze in here, people don't realize this, but this year we got a double EB-5 quota, normally it's 10,000 a year. This year we got 20,000 EB-5 visas, and most of them will carry over to next year. So, I'm loving this new law. Pardon me, carrying on, so excited, but I wanted to share all of that with your audience.
Ali: Well, for our audience, please explain why EB-5 is a good option or a better option, viable than other alternatives, like the L-1 intercompany transfer, or the EB-1, especially for the Indian and Chinese nationals who don't fall under the E-2 visa category.
Bernie: Well, you hit the nail on the head. Firstly, let's talk about the L-1, EB-1, A category, and the L-1, EB-1, C category, which you're specifically mentioning. Look, the managerial transfer works beautifully. If you work for a big company in India or China, and you're one of the senior executives transferred to the U.S., yeah, sure, call me. We can do an L-1, we can do an EB-1 A. If you happen to have a Ph.D., and Google citations over 1000, yeah, call me. You're obviously famous, you're a Nobel prize winner, you're a Grammy winner, great, that may be open, but you know what? Very few people qualify for the EB-1.
And the nice thing about the EB-5 is all that we need is to prove legitimate source of funds, select a good project, and a good project is basically defined as one where you're gonna get your money back, and you're gonna get your Green Card.
So, right now, in terms of the options that are available to potential investors, let's make it simple. If you don't qualify for immediate family, if you don't have an employer willing to sponsor you, and you don't win the lottery, or qualify through the lottery, what have you got left? Well, you've got EB-5.
So, if you're a high net worth individual, with substantial resources, and you're able to invest $1 million or close to it, then the key is start doing your due diligence because this is a fast-track, Green Card.
If you've got a child in the United States who's graduating, you wanna give them the best graduation gift ever, consider EB-5. Because this is a fast-track Green Card, not connected to any employer, and all you've gotta do is due diligence on your project investment, and bingo, you're home.
So, I'm a big fan of EB-5, big fan of the new law, and I think that your listeners will find this very, very helpful in outlining options, particularly from what we call backlog countries, such as India, which, don't even wanna talk about it, it's so sad. But the reality is EB-5 is a good option.
And here's another thing, little prediction, at the moment, the categories are open for China, the rural reserve category, the high unemployment category, there will be about 4,000 visas allocated next year to the rural reserve category. About half of that will be allocated to high unemployment, but these visas are gonna go very fast, so you need to file your case, get your place in the waiting line, and you got a great shot at getting a Green Card. And if you do your due diligence carefully, you should be able to get your money back based on a sound investment.
Ali: You make great points, Bernie. I totally hear you. The Indian nationals, they can't apply, they can't get their Green Card because their waiting lines are just crazy. I know people on H-1Bs, they're forever on this employment cycle, and they wanna get out, they're smart people. They wanna have their own businesses, they don't have a choice to get their Green Cards. It's an interesting point that you raised, that you can be on a B-2 visa and apply for an EB-5 when you're inside the United States.
Let me ask you a question, Bernie, people wanna have the flexibility to complete their EB-5 investment over time. Do they need to invest the whole amount, the $800,000 or the $1,000,050 upfront?
Bernie: So, here's the simple bottom line. Number one, those projects, which are what I call a good project, generally, they won't take partial investment, number one. Number two, the only exception that I'm comfortable with filing is if the person has identified the money.
Let's suppose you...and let's just talk about India, because India is obviously... I don't know if you know this, but India became number one in the EB-5, okay? India was number three, now, India is number one in terms of demand, and there's a reason why. It's not only the people who are stuck in the U.S., many of them on H-1Bs, earning fantastic salaries. But the percentage of doctors in the U.S. performing residency ,approximately 70% Indian nationals and 15% Pakistanis, so it's...
I mean, let's get real. If you want a good doctor in underserved area, you're gonna get an Indian doctor, lucky you, these are top-notch doctors, and they are loved in their communities, but they stuck in these ridiculous waiting lines. These are the doctors in rural communities that are absolutely vital for these communities. And they're stuck with 15, 20-year Green Card waiting lines, it's ridiculous, but they're earning...a lot of them earning $200,000, $300,000 a year, they're top physicians.
So, we've seen a lot of Indian nationals using this EB-5 category to get out of the horrible EB-2 waiting line, and EB-5 is good, but I'm gonna predict there will be EB-5 waiting line as well. The demand for these things is hot. But let me answer your question.
So, let's take India. Now, we all know that India has currency control restrictions. So if you, for example, sold your house, and you can show that you have all of the money ready in a bank account now, and you are merely waiting for government approval to transfer, under those circumstances, your case may be approved, but it's risky, and I really advise against it.
A, the good projects want all the money, and, B, this partial investment thing, oh, it can go either way, so I'm not comfortable. Yes, we've done it. Yes, we do do it, but I make my clients very clear that it's not 100% guaranteed. So, you sit, you wait two or three years, you make your investment, you're in the U.S., you've got your work permit, everything's going lovely, and suddenly you get a denial on this issue.
So, why do it? Don't. Avoid it if you please can. Get the money into the U.S., I know it's not that easy, I'm not a currency transfer expert, but this is the way to do it, get it into the U.S., file it in one shot, and we'll get the Green Card for you.
Ali: When you talk about these sources, the sources of funds, you mentioned that it has to be lawful. What if the source of funds is 100% gifted? Is that an option that's available?
Bernie: Well, gifted is not a problem. The new statute talks of a legitimate good-faith gift, okay? So, one of the questions that I always had, and pardon me being a bit silly again, but what if it's a girlfriend case? And the answer is, that's fine, it's still a good faith investment. Most of the gifting that we see is from a parent to a child. You don't expect to see 18, 19-year-old students have that kind of money. So, the money is being gifted from the parent, but she has the critical point. You have to now do source of funds analysis on the giftor, and you need to warn that person.
So, if rich uncle is making the donation to his smart, lovely niece who just qualified from law school, and got admitted to the bar, at the end of the day, we now have to do source of funds on the uncle, and sometimes they don't like that, so you need to warn them upfront. That we have to find out, "Where did you make your money, sir?" So, a lot of giftors are uncomfortable with this, but I have to say that probably more than half the cases we file involved gifts.
Ali: Right? So, Bernie, we've been talking about the overall EB-5, but then as an investor, listening to our podcast, I understand that there's two ways an investor can opt for making an investment, either direct investment or through regional center.
Can you illuminate here, what are the potential investors trying to navigate or what are their options in making an investment? Somebody who lacks the knowledge of understanding the business nitty gritties, if they wanna make an investment, you know, Bernie, just tell us what options do you recommend them opting in for?
Bernie: You're asking the most important question in EB-5 because there are these two different... So, we have many people who want to do EB-5, so let's just examine that. They have to hire 10 full-time employees for a minimum period of 5 to 6 years. If we get backlogs, possibly longer. So, 10 employees...lawyers are not good at math, but you're looking at having to commit to $4, $5 million in payroll.
And if you call me, and say, "Oh, sorry, my business is not doing well. I need to lay off two employees. I can only have eight." I'm gonna say, "I don't care. You are not gonna lay off those employees. If you lay off those employees, your case will be denied, and you'll be deported."
So, the problem with direct is even if the business is doing poorly, the employer has to keep pouring and pouring in huge amounts of money. And gosh, I've seen this happen so often. So, I am not a big fan of direct. Do we file them? Yes. Do I have many cases? Yes. Do I encourage it? No. There's no good exit strategy.
This is the reason why over 90% of EB-5 is in the Regional Center Program. Now, what is so lovely about the Regional Center Program? Firstly, with this new law, we have better oversight. We have better supervision. We have more transparency. We have clarity showing where the money is, where it's being invested. We have consequences for people who decide to cheat. So, the program has been strengthened.
This is a good new law. I really like it. And here's the reason why I love the Regional Center Program. Indirect job creation, repeat it, indirect job creation, repeat, indirect job creation. All right. And we got it clear now. We do not actually have to have...well, we have to have 10% actual jobs. What is indirect job creation? Well, basically, let's make it simple. You spend a certain amount of money that creates a certain amount of economic activity.
So, if you spend $2 million, it will indirectly create X number of jobs in the following area. So, the simple bottom line is using these expenditure models, use of government expenditure models, such as [inaudible 00:16:37], you can calculate based on an amount that's being expended, as to how many jobs are being created directly and indirectly.
Let's look at construction. You spend X million dollars on construction. The construction worker has to buy boots, has to buy lunch, has to drive this car, so it's creating economic activity. But let's not become experts at indirect job creation. Let me just tell you, the indirect Regional Center Program is the way to go. The direct program is headache, and generally, if it's an outside investor, they end up having to commit enormous amounts of money, put the money at risk, keep the jobs going even if the business is bad. This was particularly difficult during the pandemic that we've just endured, and are enduring by the way.
So, at the end of the day, it's no choice, we've gotta go for regional center. Doing direct, I know that people wanna do it. I'm still filing it, but I try to discourage people because having to keep 10 people on payroll per investment, not smart. It's very difficult for that period of time.
Ali: Interesting. So, Bernie, practitioners, and investors say that the biggest risk is not USCIS approval, it's the project. And I know there's no guarantee in life and in business, there's none, but it's a lot of money at stake. And in some cases, your lifetime savings...and investors put into this risk. Investors want investment to be, you know, low risk and a low-stress process. What are some strategic decisions that investors should make in your opinion?
Bernie: This is a big one. Before you make an investment of $1 million, this is what I tell people. Look, if you were gonna go and buy a home, would you look at one home and then buy it? Maybe if you are a billionaire. No, you're gonna look at a few different homes. You're gonna do your comparison. And if you're smart, you're actually gonna hire a competent broker, who's gonna advise you. And having professionals advise you through the process of doing due diligence is essential. There are a handful of very experienced lawyers who can get you started. I like to use the word quarterback, general manager.
We know who the good regional centers are. We know who the good due diligence people are. We know who is an expert in this area. Many of them have "EB-5" magazine certification as you know. I'm proud to have been listed over the last few years as one of the top EB-5 lawyers. Of course, I'm not the only one, there are many others. All the professionals are listed at the "EB-5 Investor" magazine website. You can ask questions through the "EB-5 Investor" magazine website. I don't know if you noticed this, but I like to brag a little bit. I'm the guy who answered the most questions on "EB-5 Investor" magazine. I do it every day.
The truth of the matter is it comes through years of experience. And I'm an immigrant, I came from South Africa originally. I was granted political asylum in 1979. And I think going through the process kind of helps. It helps you understand the anxieties that people go through. As you say, many of these people work hard for their money.
And here's the point, coming back to your key question, due diligence. Do due diligence, and then do due diligence on your due diligence provider. Due diligence are the magical words. Look, you raised a question, we mentioned that Indian nationals are the number one investors. The Indian nationals are smart. They work hard for their money, and they do due diligence, and they do it carefully.
So, at the end of the day, that is the right approach. Again, if you're gonna spend $1 million dollars, check it out, do the comparison, ask the hard questions. But I get these emails from people with 45-10 [SP] questions, "Oh, Mr. Wolfsdorf, I'm considering you as my lawyer, I have 45-10 questions," which they're sending to 20 different lawyers, that's not the way to do it. You've really gotta find out who're the good guys, and you have to trust them. At the end of the day, work with the top people, people who have lots of experience.
My interest in this business is I'm not looking for a quick client, I'm looking for a referral. So, we try and do a good job, we think we know where the good projects are, we think we know who the good regional centers are, you have to be very careful to make sure that your investor does careful due diligence and research.
Those projects that offer big returns, I tell all my clients, "Run away." If they promising a big return or a good return. No. The issue in EB-5 is called capital preservation. All the good regional centers will pay a very small return, 25%, 50%. If you're looking for good returns, do not do EB-5. The good return cases are a problem, they're gonna lose their money. In my opinion, it's too risky. You wanna go with their capital preservation if you can get your money back.
Well, as I like to tell people, "Most of your money back, if you get $790,000 back, stop complaining, you've got a Green Card, and that's a good deal." So, the higher the return, the more chance you're not gonna get your money back. I was talking to a project developer recently, and they said to me, "So, what is this thing gonna cost me at the end?" I said, "You're probably gonna pay 4% or 5% with all the costs of lawyers and everything. This is for the developer." And they said, "But I can get that money for 5% from the bank."
"So, if people can get bank money for 5%, why are they paying you 10%?" It means they can't get the money from the bank, so go figure. Be careful of high returns. EB-5 is not for investment, it's for a Green Card. And for investment, go buy some real estate somewhere or whatever you wanna do, but not EB-5. It's not for making profits, it's for getting a Green Card.
Ali: Yeah. This is very transparent, and I wish anyone who's listening to this understands how the structure works. We see a lot of humanitarian-based cases and gives an opportunity to spouses and whatnot in these humanitarian cases that I've heard about. Do we have protections offered by immigration law in similar cases to EB-5? What happens to these spouses when they get divorced or are they subject to abuse?
Bernie: Very good question. Yes. I have seen this happen, and I'm very pleased to say that in the EB-5 arena, we have good protections. Firstly, if the person has landed, but here's the key, the person does have to have the conditional Green Card. As you know with EB-5, they give you a two-year Green Card to start off with. So, provided you have the conditional Green Card. If the marriage subsequently breaks through divorce or otherwise, we don't even need the VAWA, which is Violence Against Women's Act. We don't need the VAWA protection.
If they separate even amicably after they've landed with the Green Card or the Green Card's being approved, then it is not difficult. The divorced spouse can then file her own I-829 petition, or she could even be included in the original one. So, we are not that worried about this particular issue.
If however, they divorced before they get the Green Card, we have a problem. But once they've got the Green Card, they've landed, there's adequate protection for spouses and even adult children. Because once the children are over 21, they can still be included, provided they got the conditional Green Card. So, this area of the law, not a problem. We do have adequate protections for people who are abused spouses if they've got their Green Card.
And I've got one more interesting one, this has happened, unfortunately, very sad. You've gotta be careful who you choose as the principal investor. Why? Let me tell you a couple of sad stories we've had. Our office has actually filed over 4,000 of these cases. We were filing almost 10% of the annual quota at one point.
Ali: Wow, That's a lot.
Bernie: A lot. We're talking...we were filing 1,000 cases a year. So, in some instances, the principal applicant would be the dad. And as we well know, dads don't last as well as moms, we have lower life expectancy. So, sometimes you wanna have the mom. So, what happens if the dad dies while the application is pending? Very sad situation. Dad wants to immigrate with his whole family, and dad passes away. "Daughter's in the United States studying on an F-1 visa, what can you do for us, Mr. Wolfsdorf?" Well, I'm proud to say that under Section 204(l) of the law, the survivor spouse provision, "Provided any member of the nuclear family has been physically present."
So, if one of the kids was studying in the U.S., dad kicks the bucket, pardon me using that phrase, at the end of the day, I can get a Green Card for the mom and the kids, and I've succeeded in this in the past. So, there are very good protections in this law for family, but be careful if dad's health is not good, maybe you shouldn't be the principal applicant, mom should be the principal applicant. The statistics show that moms live longer, but that varies depending on the individuals.
So, yes, good protections, good program, but you better know what you're doing because if you put it in the wrong project, well, it could be very sad.
Ali: Well, Bernie, you share some valuable insights. I know we're gonna be crossing our timepoint, but I got two more questions for you. In one of your previous interviews, you talked about deny or delay culture. You said that in the old days, immigration attorneys used to have something called statutes and regulations, now it's called rule by RFE. You mentioned that the government now have changed their positions and become aware of the issues through the RFEs.
Let's talk about how we're gonna go play out the new legislation era with the RIA in place. Are we gonna continue to understand the USCIS's positions, and the new law through RFEs? And if yes, what can you do to change the position?
Bernie: So, yes, interesting situation. We just had a perfect example of this. They brought out this new statute, the government said all the regional centers are canceled, I mean, really? This was so silly. So, Behring, which is one of the regional centers brought litigation, and the judge in San Francisco, he looked at the facts, he said, "This is ridiculous. The regional centers are not canceled, immigration, you have to start accepting the cases." So, look, it didn't take long.
This is a nationwide injunction requiring USCIS to start accepting cases without having to re-certify the regional centers. There's always going to be problems with the law. The attitude is, "No, they're not nice." I'm sorry. The government is quite restrictive in the way they adjudicate these cases, but there are a handful of good lawyers. I know this is self-serving, but we kind of know what the government likes and what the government doesn't like. And if you try to be smarter than the government, you're probably gonna lose. And the government doesn't want you to cheat.
People like to cut corners. People like to see if there's a shortcut. Oh, I have a friend who did this, and I have a friend who did that. It drives us crazy. I don't care what your friend did or what your friend says. He's probably lying to you. I do this every day, all day. Please listen to us. We know what the government likes, what they don't like. They want it clean. They wanna see the monies clean, they wanna see the jobs are created, it's not complicated.
There's only two things in EB-5, "Give me clean money and create the 10 jobs directly or indirectly." You can make it as complicated as you want, but if you try to cheat on the job creation, the government will catch you. They're smart. They know how to do this.
You see, I had this case once, the guy tried to do his own business, and his business wasn't going well. So, they made up phony employment records, they made up phony bank records, they made up everything. The government caught them. You know how they caught them? They compared the bank withdrawal to the payroll, and they found discrepancies.
So, this guy...they could see the money that was drawn out of the bank wasn't the same amount as the money paid to the employee. Don't think you're smarter than the government, they're smarter than you. Do it correctly, follow the rules, you're gonna get your Green Card. And right now with this one-step processing, gosh, you can take it straight off a student visa, you can take it straight off an H-1B, under these priority processing rules, and I'm guaranteeing you, there's gonna be waiting lines again, including for India.
India will have waiting lines again soon. Those people who are waiting, "Oh, I wanna see what happens with my friend's case." Good luck, your friend is gonna get the Green Card, and you're gonna get stuck in the waiting line. There will be backlogs under the Indian quota, there will be backlogs under the Chinese quota, and most certainly, under the Vietnamese as well. These backlogs will appear.
I don't know when, maybe not this year, maybe early next year, but those people who wanna sit on the fence, you're gonna get stuck on the fence. Because this is a very, very hot opportunity. The market is really going into a frenzy. People are calling nonstop. I've had to train two more of my lawyers today, so we have six lawyers trained, just doing intake on these cases.
So, for those people who're waiting, don't, this is the time to act, this is a very unique opportunity in U.S. immigration law. Of course, if you're a Nobel prize winner, apply for EB-1, if you're the Managing Director of Tata, or a huge big Indian conglomerate, fantastic, you're EB-1, C. But if not, and you don't want to wait 20 years, if you come from India, then EB-1 is a fantastic opportunity for you right now, but it's not gonna last for long. It's gonna be sold out very soon.
Ali: Yeah. It certainly sounds like a hot market for what you're talking about. And especially, it's a big victory for the EB-5 market. How do you feel about this?
Bernie: We're very excited. Firstly, my hats off to the regional center for taking the initiative and spending the money. The government was playing wrong to cancel the regional centers. There's no doubt in my mind that that would've delayed the issuance of visas. That's a wonderful decision. I'm very proud of that regional center. And we spoke about this earlier, there's always going to be problems and headaches.
The good thing about the United States is we still have the courts. The courts will jump in and do the right thing. And this judge saw the issue very clearly and ordered the immigration service to start adjudicating cases and to reinstate the regional centers. So, we're back in business, we are very busy right now with source of funds. And for your listeners, I would encourage them to start doing due diligence immediately, this is the time to move.
Ali: You're certainly right, Bernie, we're back in business. Happy and grateful to have an old friend on the show. Thank you, Bernie. Thanks for sharing your honest and valuable insights on the EB-5 program, eb5investors.com is very grateful to have you, and see you next time.
Bernie: Thank you for having me as a guest, and look forward to the next one that we do, hopefully very soon. So, I hope your listeners enjoyed this valuable information. Take care.
Ali: Thanks a lot. You've been listening to the "Voice of EB-5" podcast by "EB-5 Investors" magazine. To learn more about this episode, please visit eb5investors.com/podcast. Join again soon for more conversations and please stay tuned.