Kojo and Tom Sherwood chat with D.C. Council Member Elissa Silverman (I-At Large)
Businesses across the country are taking advantage of a controversial visa program that offers foreigners a speedier path to the residency in the United States if they invest in business ventures. The EB-5 program is now part of Virginia’s gubernatorial race — the Democratic candidate is linked to a car company that made use of those visas to solicit foreign investment. We explore how the program works and why it’s become a flash point in Virginia’s politics.
- Fredrick Kunkle Staff Writer, The Washington Post
- Stephen Yale-Loehr Attorney of Counsel, Miller Mayer; Adjunct Law Professor, Cornell University; Founder and Former President, The Association to Invest In the U.S.A.
MR. KOJO NNAMDIImmigration is a flashpoint in the politics of states all across the country. But a political controversy is brewing in Virginia this year over an aspect of our immigration system that's often overshadowed by debates over border security and deportation, investment immigration. The Democratic candidate for governor Terry McAuliffe is fielding a lot of questions these days about an electric car company from which he recently resigned called Green Tech.
MR. KOJO NNAMDILike a growing number of companies in America, Green Tech relied heavily on raising private funds through a visa program called EB-5, which essentially gives foreign investors who put money into American projects a way around the uncertainty of the U.S. immigration lottery system and the faster path to green cards. But questions have swirled about how McAuliffe's former company may have solicited foreign investors and whether a federal official offered the company improper assistance.
MR. KOJO NNAMDIJoining us for a primer on the EB-5 program and why it's become part of Virginia's political narrative is Fredrick Kunkle. Freddie Kunkle is a reporter at the Washington Post. Freddie Kunkle, thank you so much for joining us in studio.
MR. FREDRICK KUNKLEGreat to be here.
NNAMDIYou have gone down the rabbit hole about as far as one can go to learn about the electric car company Green Tech. You went all the way to Mississippi to the site of the company's proposed plant. This company's financing model relies heavily on the EB-5 program. How does the program work?
KUNKLEThe program works in that the United States government is trying to find ways to get foreign investment in the United States' economy. And in exchange those immigrant entrepreneurs receive conditional visas -- conditional resident visas. And in particular the programmed structured in a way that it also targets rural areas and areas with high unemployment, for which Mississippi qualified.
KUNKLESo if an investor from Asia -- and many or most of the investors in this program have been from Asia and China -- agreed to invest, they could put up $500,000 in an area like Mississippi where the plant is.
NNAMDIIn a rural area. And in an urban area it has to be a million dollars, right?
KUNKLEOr an area that has just -- it isn't as distressed say, with high unemployment and so on.
NNAMDIYou reported that Green Tech's foreign funds are pooled and managed by Gulf Coast Funds which has federal approval to manage EB-5 investments. Who are Gulf Coast Funds and how does the arrangement work?
KUNKLEWell, the company is owned actually through an entity by Xiaolin -- if I'm pronouncing that correctly -- Charles Wang, who's also the chief executive of Green Tech. And its CEO is Anthony Rodham, who is the brother of former First Lady and Secretary of Stare Hillary Clinton. And the ideas that these firms receive or manage the investments coming in from foreign investors, they help them apply for the visas. They help them get the paperwork together to make sure that the money comes from genuine clean sources. The income are not ill-gotten gains in any sort of way. They conduct background checks and so on, on the investors.
NNAMDIBefore we wade through the controversy swirling around Green Tech, what kind of red tape does a business typically have to go through to secure EBI funding? What's the pace, if you will, of the process?
KUNKLEWell, the pace -- and I know this mostly through the lens of Green Tech -- but the pace has been -- they have felt it has taken much too long for the United States government to clear, to investigate these investors. And this is, in fact, what has now led to the issue that has kind of -- that's occupied congress at a federal level and Green Tech and the Virginia race. And that is whether or not top federal officials in the U.S. CIS, which is the U.S. Citizenship and Immigration Services which manages the program -- whether or not they improperly intervened on behalf of Green Tech and Gulf Coast Funds Management after being lobbied by Mr. McAuliffe and Mr. Rodham.
NNAMDIJoining us now from studios at Cornell University is Stephen Yale-Loehr. He's an attorney at the firm Miller Mayer and a law professor at Cornell University. He's the founder and former president of the trade association Invest in the U.S.A. Stephen Yale-Loehr, thank you for joining us.
MR. STEPHEN YALE-LOEHRGlad to be here.
NNAMDIStephen, the last time you joined us we talked about your creating and then serving as president for a trade association of regional centers, the enterprise that are certified by the government to receive EB-5 funds. But you've also done legal work in the past for Green Tech. Before we go any farther, what is your relationship to that company?
YALE-LOEHRYes, I represented the regional center Gulf Coast Funds Management back in 2010 at a time when it was owned by prior people. And then Charles Wang came in and bought the regional center to be able to facilitate his Green Tech Automotive. So for a few months I also helped Charles Wang get going on his automotive thing. And then I stopped representing them in 2011 as they switched over to a new immigration attorney.
NNAMDIOkay. Why is that most immigrants apparently prefer participating in the program by investing in these regional centers? How does that work?
YALE-LOEHRSure. There's two ways that a person can get an EB-5 green card. One is to run your own company, set up your own hotel for example in Washington, D.C. But to do that you have to invest your own money, you have to then promise that you're going to create at least ten jobs in two years. Any many people aren't true business people or entrepreneurs and so they don't know if they're going to be able to do that.
YALE-LOEHRSo 90 percent of the people who get EB-5 green cards each year do so through these so-called regional centers. And Gulf Coast Funds is one of 300 regional centers that the U.S. CIS has approved over the years. And they act as intermediaries to help investors find projects in their area, whether it's Mississippi or Washington, D.C. They help developers by saying, here's a way that you can get additional financing for your project, say it's a hotel in Washington, D.C., if you can't find local funding. And so they help everybody get through the laborious and complicated EB-5 system.
NNAMDIIn case you're just joining us, we're talking about EV-5 (sic) immigration visas with Fredrick Kunkle. He's a reporter at the Washington Post and Stephen Yale-Loehr. He's an attorney at the firm Miller Mayer and then a law professor at Cornell University. He's the founder and former president of the trade association Invest in the U.S.A. If you have questions or comments for us, call us at 800-433-8850. How do you feel about the idea of the federal government using green cards to attract investors to the United States, 800-433-8850? You can send email to firstname.lastname@example.org.
NNAMDIFreddie, Terry McAuliffe's campaign has fielded a lot of questions during the past several weeks about the launch of an SCC investigation into Green Tech. You mentioned what the SCC was looking into. Can you be a little more specific?
KUNKLEWe don't know a whole lot of details about what the SCC is looking into but apparently it is whether or not investors -- foreign investors were impermissibly promised or guaranteed returns for their investments. One of the keys...
NNAMDIImpermissibly is the important word there because there were not -- the law does not allow you to promise investors returns on their investments.
KUNKLEYes. As I understand it, the money has to actually be at risk. It has to be a real investment that's made by people. And one other thing that was interesting -- and I learned this from talking to Mr. Wang -- is that he was saying that in general they don't -- the regional centers don't solicit the investors. He said at the beginning they did. They knew some of the people who were interested in getting green cards and visas.
KUNKLEBut in general they also work with essentially what's maybe the reverse equivalent of a Chinese firm. Chinese firms which put out these prospectuses to possible investors and they solicit people the way -- as Mr. Wang compared it -- the way mutual funds put out a prospectus and invite people to invest.
NNAMDIInvestigation aside, how is Green Tech doing on the bigger promises it made publicly about creating jobs? Part of the controversy in Virginia has been about the company's decision to locate a plant in Mississippi rather than in the Commonwealth. You went to Mississippi to find what Green Tech is bringing there too by way of jobs.
KUNKLEYes. We went to Mississippi basically because from the moment that it became clear that Terry McAuliffe was going to run for governor, his platform was namely that he is a businessman and a jobs creator and that he has a long history of success. He had not been elected to public office before. So it was a fairly obvious step to say, well let's go take a look at what his ventures are like. And we also wrote about another one called Franklin Pellets, which is down in the southern part of Virginia as well. And what we found is that the plant certainly has not lived up to the promises that Terry has made.
KUNKLEI spoke to five former employees altogether, two of whom agreed to speak on the record. And they described a plant whose operation was, as they might characterize it, dysfunctional or even amateurish. And they didn't understand what the aim could be of this plant because it seemed as if they were making a product that wasn't put together very well, that they would sometimes come in and undo what they did the day before and so on.
NNAMDIWell, one of the aspects of undoing what the day before, had to do with the allegations made by some of the people you talked to. That there was a desire to impress potential investors who happened to be visiting, by giving them the impression that serious work was going on there when there wasn't.
KUNKLEYes. Three of these employees in separate interviews all described being told by management that investors were coming, sometimes investors with a lot of money potentially at stake. And they were told that it was time to put on a show and that as one of the employees described, they might sort of preplan what they were going to do. Something that had already been put on a car would be taken off and put back on.
KUNKLEI should note that the company itself says that's not the case, that no investors came. No investors visited the plant after its production launch last July and they dispute this. They say that the workers, not being able to speak Chinese perhaps, misunderstood. These were not investors. These were perhaps suppliers and other business partners.
NNAMDIStephen Yale-Loehr, how can the federal government track the effectiveness of these investments? What data does it use to calculate whether or not they're creating or preserving jobs there?
YALE-LOEHRThey do this in a variety of ways. First when a company wants to become a regional center or has a project in mind, they file a petition with the immigration agency, we plan to do this. We plan to do a hotel in downtown Washington, D.C., for example. And they have to submit a business plan to show what they plan to do. And they also have to submit an economic report by an economist who's familiar with the EB-5 program that says here's how many direct jobs we're going to create and here's how many indirect jobs. And oftentimes the immigration agency will have questions about it at that stage.
YALE-LOEHRThen second, when the individual investor wants to get a conditional green card, they have to file their own petition with the immigration agency and they have to prove that they earned the money legally to be able to invest. But that also gives the immigration agency a second chance to review the project plans to determine whether they think it really will create the jobs that the project developer says it will.
YALE-LOEHRAnd then third, two years later when the investor tries to remove the conditional part of his green card and make it permanent, they have to prove that they really did create the jobs by submitting payroll records or expenditure reports. So the immigration agency has three chances of making sure that the jobs really will be created.
NNAMDIAnd how are regional centers supposed to curb against potential fraud or abuse?
YALE-LOEHRThe immigration agency has to do a very careful job. No program is perfect but by giving them three bites at the apple they can try to make sure that projects really will go forward. Obviously when you have something like the great recession of 2008 and 2009, even the best laid plans and the most carefully thought out plans may not come to fruition. And that's one of the things that the investors have to understand because the program does mean that their money is at risk. And they may be losing their money and they may not be able to get the permanent green card eventually.
NNAMDIOnto the telephones. We'll start with Morey Burez who's been waiting for a while, who describes himself as a former program manager of an EB-5 program from 2001 to 2008. Morey, you're on the air. Go ahead, please.
MOREYHi, Kojo. Thank you. Yes, I think it's important not to lose sight of the universe with this one case. I mean, there are well over 200 regional centers that have brought to bear well over a couple thousand -- I mean, probably, Steve, what would you say, 10,000, 20,000 investors today?
YALE-LOEHRSo far at least, yes.
MOREYAnd, you know, so to focus on this project, I think that it's important to note that there are problems. In fact, when I took over the program in 2001 I was appointed to that position by the associate commissioner of the former Immigration Naturalization Service simply to address the problems with the program that had occurred in a prior period of difficulty and misrepresentation of investments.
MOREYAnd so we grew the program and what we did is we recertified the regional centers. And in 2008 when I was there I recall this particular regional center had political -- the former owners had a lot of political stroke with the Bush Administration. They had a former DHS official who was advocating for them to have a quick approval, and there were difficulties. So politics do enter into it but the agency -- the USCIS, the current agency that's doing the job is doing a thorough and professional job of really doing due diligence as best they can. And periodically they do send agents out who will make a site visit, typically unannounced, just to determine if the reality on the ground reflects what was represented in the paperwork.
NNAMDIOkay. Morey Burez, thank you so much for your call. We're going to take a short break. When we come back, if you have called, stay on the line. We will get to your calls. If you'd like to call the number's 800-433-8850. What do you think the federal government should be doing to attract immigrants who can help jumpstart our economy? You can also send us an email to email@example.com. Do you think it should be easier to obtain a green card in the United States if you can prove that you're capable of sustaining or creating jobs here, 800-433-8850? I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on the EB-5 visa. We're talking with Stephen Yale-Loehr. He's an attorney at the firm Miller Mayer and law professor at Cornell University. He's the founder and former president of the trade association Invest in the U.S.A. Fredrick Kunkle is a reporter at the Washington Post. You can call us at 800-433-8850. Freddie Kunkle, you wrote that economic officials in Virginia were apparently nervous by Green Tech's reliance on EB-5s when the company was pitching the Commonwealth very early on. What made them nervous?
KUNKLEThat's really interesting. We and other media organizations began looking into this after there was a press conference, press (unintelligible) Terry McAuliffe last December, in which he asserted that basically the reason that Green Tech opened up for business, began production in Mississippi was because Virginia just wasn't interested. Virginia didn't bid on these kind of jobs. And this is something that he reiterated in other interviews as well.
KUNKLESo several news media organizations, including PolitiFact Virginia foyed (sp?) these records from the Virginia Economic Development Partnership. And what came through was really interesting in that these officials were first a little nervous or wary or on their game because the proposal came in through the political office first. It was something that first came over from the governor's office because Terry McAuliffe was seeking to open a business, bring new jobs, bring renewable energy jobs to Virginia. And one of the first things he did was he met with former Governor Kaine. He met with other top officials.
KUNKLEAnd so these economic development officials, as revealed in hundreds of pages of these emails, were a little bit wary that this was coming out of essentially the executive mansion first. And so they were in the posture of both wanting to respond. They knew who Terry McAuliffe was. They understood that he was connected to the Clinton's, that had come from the governor's mansion, checked this out. So they wanted to act on it but at the same time they also wanted to make sure that this project was vetted very carefully because it could mean giving state incentives to purchase the lane, to find a factory place -- a factory site for them.
KUNKLESo they began to really examine this business model in depth. And they had many questions, not just about the EB-5. That was one of them, but they had -- they were wary about whether or not it would attract that many investors. They were -- they found that some of the claims that Green Tech was making about its sales projections, it's battery performance -- they just had many questions, many uncertainties about them, and in the end were still doing due diligence, still asking questions when it became public that the company was actually going to begin production in Mississippi.
NNAMDIStephen Yale-Loehr, apart from focusing specifically on Green Tech, we've been hearing a lot, including from what we heard from Mr. Burez about the safeguards that are included in this program. What we have not been hearing about are the -- we've been hearing about potential fraud. We haven't been hearing examples of real fraud that took place in this program. Can you give us an indication of whether that has occurred and the extent to which it has occurred that has led to these concerns? After all, this program has been on the books since 1990.
YALE-LOEHRWell, one recent example of real fraud in the EB-5 program concerns a project in Chicago where a developer claimed he was going to build a convention center there and claim that he had also -- going to put in some hotels next to the convention center and claimed to have on letterhead from major hotel chains promises that they would build hotels next to this convention center.
YALE-LOEHRIt turns out that -- and he said he had like 13 years of experience doing, you know, retail in hotels but he was only 27 years old. And it turned out the letterhead that he had had been forged or taken from some stationary of a hotel. So that was an example where the Securities and Exchange Commission came in and sued the developer saying this is a fraud. They froze the assets and they were very quickly able to return the assets to the investors so that then they could invest them in another, you know, more reputable project and be able to go on their way to hopefully get a conditional and then a permanent green card.
NNAMDIOn to David in Washington, D.C. David, you're on the air. Go ahead, please.
DAVIDHi, Kojo. Thanks for letting me on. Steve Yale-Loehr is a longtime friend and colleague of mine. So my name's David Morrison. I'm an immigration lawyer here in D.C. I've been working with the EB-5 program for almost 20 years and I'm approved here in Washington, D.C. to do EB-5 projects.
DAVIDSo first I think it's important, you described about obtaining residency in the United States. And really there's three ways to obtain residency. One is the family-based program. The second is employment based, so a U.S. company will sponsor you. But those first two options are not really viable for many people. The last primary vehicle is investment. And while investment is kind of one of the key words in the description of the program, really it's about jobs. It's known as the jobs creation program. So when people think of EB-5 investor, they really need to be thinking about it as EB-5 jobs creation.
DAVIDAnd in essence the government says, we're willing to trade one foreign investor if you create ten jobs for American workers. I think it really should be looked at as an economic development tool more than an immigration tool. Here in Washington, I've worked on several really fantastic projects that I think stand as a kind of good contrast to some of the problems that Green Tech has gone on.
DAVIDSo for example, here in Washington you're probably familiar with the CityMarket at O project. You can go one block north of the convention center and find 400 construction workers working at any time on this project. And EB-5 was the first lender to this project outside the developer equity. And so...
NNAMDIIt used to be known as the O Street Market.
DAVIDExactly. And so we provided already $50 million to that project to help finance the construction. I think, you know, you look at the development that's going on there and that's exactly the type of program that the immigration service and the congress expected to see in this. And I think that that's a great example. Other ones, we helped to finance the expansion of the Port in Baltimore. So it's another public private partnership, just like CityMarket where private money is coming in with public assets to really create jobs and expand the economy.
DAVIDThen the last one, we are a month away from breaking ground in southwest Washington to build a hotel and to deliver a new fire station for the D.C. government. So these are, I think, really good examples of a good working EB-5 program. And I don't want to leave listeners with the taste that the Washington Post and others have left that the Green Tech represents the EB-5 investment when it couldn't be more different.
NNAMDIWell, I'm glad you made those points, David. It allows me to ask Stephen Yale-Loehr a broader question. In the context, Stephen, of the current political conversation about immigration at the national level, how do you think the debate over EB-5 is going to shape the conversation about the kinds of immigrants we're trying to attract to the United States? Even though David puts it in the context of creating jobs, some people might feel this isn't a program that's in the spirit of give me your tired, poor and huddled masses. But it's more along the lines of give me your venture capital so we can all get rich together.
YALE-LOEHRWell, I think you also have to realize the EB-5, although it's received a lot of publicity recently, is a very small part of our overall immigration program. Over a million people a year get green cards. Seventy percent of those are based on family characteristics. Twenty-six percent, or 140,000 per year, are based on employment characteristics. And only 10,000 a year go to the EB-5 program.
YALE-LOEHRSo I think that as the senate has adopted a comprehensive immigration reform program, they have looked at all the aspects of our immigration system and have revised our family-based system to try to make it more manageable so there are not as many backlogs. They have revised the employment-based system to try to make it easier for certain high-level people to come into the United States to get green cards. And the only thing they've really done on the EB-5 program was to take what is technically a pilot temporary program and make it permanent.
YALE-LOEHRSo I think the senate immigration bill has done a good job at looking at all aspects of our immigration system and trying to modernize it for the 21st century.
NNAMDIOkay. And David, thank you very much for your call. Freddie, let's talk about the politics of this for a second. This past weekend, the New York Times quoted Charles Wang, McAuliffe's former business partner, as saying that McAuliffe's political profile brought a lot of unwanted attention to this project. What sense did you get from the people you talked with about the degree to which the company's connections to McAuliffe and the Clintons are looming over its future?
KUNKLEYes. I spoke to Mr. Wang also and he basically felt that he was just trying to start an auto company and he teamed up with Terry McAuliffe. And Mr. Wang says he had never teamed up with a politician before. And although he credits Terry McAuliffe with having a lot of vision and enthusiasm, which is practically Terry McAuliffe's trademark, it's also brought a lot of unwanted scrutiny. And as Mr. Wang would say, it's unfair.
KUNKLEBut the fact is that a lot of media, not just the Post, NBC 12 in Richmond, the New York Times, other folks have been looking at it precisely because of the political connection because this venture was started in some ways by Terry McAuliffe precisely because he wanted to create jobs. He wanted to show that he could do something in Virginia and renew -- and make it renewable energy. And his maneuvering to do that began soon after he lost the Democratic Party primary in 2009 in June. He came in second in a three-way race.
KUNKLEAnd the work of putting together Green Tech with Mr. Wang begins just a few months after that. And there's a lot of evidence that he definitely did this as a business investment. He wanted to make money. But I think he wanted to reap political dividends also. And it has not lived up to the promises that he has had for it. Just a year ago he said that the plant was going to be making -- at full production was going to be making a car an hour. And the people I've talked to, the people that other media organizations have talked to said that they were lucky to complete one or two cars every few days.
KUNKLEAnd I think that has -- that's one of the things that the Republicans are certainly questioning and challenging Terry McAuliffe's job creation claims about.
NNAMDIIndeed, Stephen Yale-Loehr, if this is becoming part of a partisan political process that we are experiencing in this country, if indeed some Republicans will try to use this story to not only influence Terry McAuliffe's chances of being elected, but ultimately whether Hillary Clinton decides to run for president using in that way. What are your concerns about getting involved in the political process and how it can, I guess, both amplify and distort what people's views are of the EB-5 program?
YALE-LOEHRWell, I do worry about that. I think we have a broken immigration system in a variety of ways. The senate has taken a first step to try to enact comprehensive immigration reform. The House is now considering the same issue through a piecemeal legislation. And this is a complicated issue that we do need to address. And things like a controversy in the EB-5 program are only distractions from our main goal, which is to try to reform the overall immigration system.
NNAMDIHere is Alex in Washington, D.C. who has another kind of concern. Alex, you're on the air. Go ahead, please.
ALEXHey, Kojo. How are you?
ALEXI've got a question about the mounting backlogs and the long processing times of the EB-5 visa program. I know that these are mounting and becoming an issue for the program office. And they've taken some steps to mitigate them such as hiring a bunch of DS15 economists to help with the adjudication process. But what other steps is USCIS taking to lower the backlog and lower processing times?
NNAMDIAs far as you know, Stephen Yale-Loehr.
YALE-LOEHRYes, I can answer that. In terms of backlogs, it has been a real problem and it's one reason why Terry McAuliffe and most other regional centers have been yelling about slow processing times at USCIS. The IIUSA trade association wrote a letter to the director of USCIS in April saying that it had collected information from its members showing that over $250 million in EB-5 money was sitting at USCIS because of un-adjudicated EB-5 petitions.
YALE-LOEHRThe immigration agency has heard those complaints, and as the caller just mentioned, they are moving the EB-5 unit to Washington D.C. They are hiring new staff, but obviously that always takes time. And so I think eventually we may see faster processing times. But in the short term, the next six months or so, it may well get worse simply because the old staff has to train the new staff.
NNAMDIWe're almost out of time, Freddie Kunkle but as the decibel level goes up, as it undoubtedly will in the governor's race in Virginia, I suspect we'll be hearing more about this. And it could affect how the national picture involving the EB-5 program looks.
KUNKLEI think that's a safe bet. It's kind of amazing how loud this race and how fast this race has been run already. And I think that's basically because it's the only show in town, being that the only other off-year election is in New Jersey and that's not thought to be as competitive. But it's been certainly pretty exciting already.
NNAMDIBy the time this election is over in Virginia, a lot more people will know the term EB-5 than know it now. Fredrick Kunkle is a reporter at the Washington Post. Freddie Kunkle, thank you for joining us.
KUNKLEYou're very welcome.
NNAMDIStephen Yale-Loehr is an attorney at the firm Miller Mayer and a law professor at Cornell University. He's the founder and former president of the trade association Invest in the USA. Stephen, thank you for joining us.
NNAMDIAnd you all for listening. I'm Kojo Nnamdi.
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