Fraudsters Using EB-5 Immigrant Investor Program To Scam Investors
Recently, there has been rise in investment fraud through the EB-5 Immigrant Investor Program. The EB-5 program, administered by the U.S. Citizenship and Immigration Services (USCIS), provides a path to legal residency for foreigners who invest directly in a U.S. business or private regional centers that promote economic development in specific areas and industries. The purpose of the EB-5 program is to stimulate the U.S. economy through job creation and capital investment by foreign investors. Lately, however, marketers have used this investment-for-visa program to defraud investors.
In a typical scheme, a company and its fundraisers will solicit EB-5 investors with the promise of high rates of return and/or U.S. residency. In some instances, the companies will even guarantee that the investments are risk-free. In reality, many of these companies act as Ponzi schemes or other illegal operations. The common SEC violations arising out of EB-5 schemes include:
- Making any untrue statement of a material fact, omitting material facts, or engaging in any act, practice, or course of business which operates as a fraud, violating Section 10(b)-5 of the Securities Exchange Act of 1934;
- Fraud and misrepresentation, violating Section 17(a) of the Securities Act of 1933; and
- Unregistered broker-dealers engaging in the sale of securities, violating Section 15(a) of the Securities Exchange Act of 1934.
Due to the prevalence of EB-5 fraud, the SEC has even released an investor alert to warn investors about potential scams. Under the SEC Whistleblower Program, whistleblowers may receive an award for exposing EB-5 fraud.
SEC EB-5 Enforcement Actions
Improperly Advertising EB-5 Projects As “Risk-Free”
On July 26, 2016, the SEC obtained a $63.8 million judgment against an oil company for a scheme that targeted EB-5 investors. The SEC alleged in their complaint that Luca International Group, LLC and its entities (collectively, the “Luca Entities”), targeting investors in Asia to invest in unregistered offerings of securities. Luca Entities represented to investors that their money would be invested in oil and gas drilling operations, and that they could expect risk-free annual rates of return of 20-30 percent. Luca Entities deceived investors by misrepresenting that their operations as successful, all while knowing that the company was losing millions of dollars. Luca Entities maintained this deception by using money from new investors to make sham profit payments to earlier investors until its bankruptcy in August 2015.
Illegal Brokering of EB-5 Investments
On June 23, 2015, the SEC charged two firms (Ireeco LLC and Ireeco Limited) that illegally brokered more than $79 million of investments by EB-5 investors seeking U.S. residency. Ireeco LCC used its website to solicit EB-5 investors and provide them with the “information and education” they would need in choosing the right regional center to invest with. After securing foreign investors from the website, Ireeco LCC would then direct them to the same handful of regional centers that paid the company a commission averaging around $35,000 per investor. While raising money for EB-5 projects in the U.S., these two firms were not registered to legally operate as securities brokers. The SEC sought to disgorge all of the ill-gotten gains and subject the companies to civil penalties pursuant to Sections 21B and 21C of the Exchange Act.
Misusing EB-5 Investments: $72 Million
On December 27, 2016, the SEC charged charged a California-based attorney, Emilio Franscisco, with stealing money over $9.6 million from EB-5 investors. According to the SEC’s complaint, Franscisco raised $72 million from investors in China to invest in EB-5 projects that included opening Caffe Primo restaurants, developing assisted living facilities, and renovating a production facility for environmentally friendly agriculture and cleaning products. Instead of using investors’ funds for the EB-5 projects, Franscisco used the money to purchase a yacht, and finance his own businesses and luxury lifestyle.
Misusing EB-5 Investments: $136 Million
On January 11, 2017, the SEC received a settlement offer from real estate developer and former Tibetan monastery student, Lobsang Dargey, in a $136 million EB-5 fraud case. This could signal a possible resolution to the high-profile case. In late 2015, the SEC ordered an asset freeze against Dargey and his “Path America” companies after raising well over $135 million million for two real estate projects. Instead of properly investing the money, Dargey diverted $14 million for unrelated real estate projects and $3 million for personal use including the purchase of his $2.5 million home and cash withdrawals at casinos.
Misusing EB-5 Investments: $100 Million
On January 18, 2017, the SEC charged California-based San Francisco Regional Center, LLC and owner Thomas Henderson with combining over $100 million he raised from EB-5 investors into a general fund from which he allegedly misused at least $9.6 million to purchase his home and personal items and improperly fund several personal business projects that were unrelated to the companies he purportedly established to create jobs consistent with EB-5 requirements. Furthermore, Henderson used $7.5 million of investor money to pay overseas marketing agents, and he shuffled millions of dollars among the EB-5 businesses to obscure his fraudulent scheme.
Misusing EB-5 Investments: $26.9 Million
On February 16, 2017, the SEC recommended a $65.7 million penalty against a husband and wife who allegedly misappropriated the bulk of $26.9 million raised in an EB-5 investment project. According to the SEC’s complaint, the couple defrauded at least 50 Chinese investors by falsely claiming that their monies would be invested in an approved EB-5 project to build and operate a proton therapy cancer treatment center (Beverly Proton Center, LLC) in Southern California. Rather than invest the money, the couple misappropriated at least $7.7 million for themselves and transferred more than $11.8 million to three marketing firms in China, including $3.5 million to a firm of which the husband is CEO and chairman of the board.
SEC Whistleblower Bounties and Rewards
Under the SEC Whistleblower Program, whistleblowers may be eligible for monetary awards when they voluntarily provide the SEC with original information about violations that leads the SEC to bring a successful enforcement action resulting in monetary sanctions exceeding $1,000,000. Whistleblowers are eligible to receive between 10 percent and 30 percent of the monetary sanctions collected.
For more information about submitting a tip to the SEC for an award, click here.
Whistleblower Protection for SEC Whistleblowers
The SEC Whistleblower Program also protects the confidentiality of whistleblowers and does not disclose information that might directly or indirectly reveal a whistleblower’s identity. Furthermore, the Dodd-Frank Act protects whistleblowers from retaliation by their employers for reporting violations of securities laws.
SEC Whistleblower Law Firm
Yes, under the SEC Whistleblower Program, individuals can receive an award for exposing EB-5 fraud. In fact, the SEC recently issued an investor alert for EB-5 projects due to EB5 fraud. In these schemes, typically there will either be misleading advertising such as guaranteeing that the investments are risk free or guaranteeing that they will receive U.S. residency after investing in the project, or they will receive the funds and spend them for improper things such as on other projects or even for buying their own personal luxury items.