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U.S. immigration with EB-5 visa program – risks and critical steps to avoid falling victim to fraud

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U.S. immigration with EB-5 visa program – risks and critical steps to avoid falling victim to fraud

By Russell Scarcella, Director,  PiotrPillardy, Research Manager and  Diana Xu, Associate Director, Exiger 

Too many EB-5 immigrant investors have fallen victim to scams that have put their personal wealth in jeopardy and taken away their opportunity to attain a U.S. green card. The EB-5 program has been prone to fraudsters, failures, and errors, yet hopeful immigrant-investors have had little recourse should the process take a wrong turn. Investors might hope that U.S. Citizenship and Immigration Services (“USCIS”) would help to direct investments toward opportunities that are compliant with regulations, or have a proven record of success. This is not the case. As of March 5, 2018,[i] USCIS has approved 919 regional centers for funding with the EB-5 program.[ii] However, this “approval” offers little in the way of investor protection. It is not a guarantee or an endorsement. Regional centers that are “USCIS approved” are not necessarily compliant with governing regulations or securities laws.[iii]

Without the ability to rely on USCIS for guidance on good investments, EB-5 investors must depend on independent background due diligence and ongoing background monitoring. Understanding the backgrounds of those individuals with critical roles in the success of an investment is an important step toward the goal of obtaining a U.S. green card.

Risks of Bad Actors 

There are several key risks involved in choosing a regional center that investors would be well advised to understand. If a regional center project fails within the first two years after a conditional green card is issued, an investor will be unable to remove the conditions, and subsequently lose the green c­­ard. This is also the case in circumstances where USCIS revokes the certification of a regional center. As of March 5, 2018, USCIS has revoked the certification of 166 regional centers.[iv]Risks can be dramatically reduced by gaining an understanding of the personal and professional backgrounds of all stakeholders involved with the regional center and the underlying development project through effective due diligence.

EB-5 investors, or their agents, are entirely responsible for vetting a regional center and its owners and management. The process of vetting should uncover specific risks based on beneficial ownership and the track-records of previous projects. Yet, vetting is no easy task. In many cases, it may be difficult to identify the ultimate beneficial owners of a regional center, much less their solvency, criminal history, or track records in managing investments, particularly those involving real property development. Proper due diligence includes background checks and ongoing background monitoring of the project developer, the regional center and possibly the general partner or manager of the new commercial enterprise.

Lawyers and agents may offer background check services, but better services exist. While immigration lawyers are a critical part of the EB-5 process for the immigrant investor, lawyers generally are not equipped to engage in thorough background due diligence investigations or ongoing background monitoring. In some circumstances, the same law firm may even represent both the regional center and the investor, posing a potential conflict of interest.

The Value of Proper Background Due Diligence

Fraudulent EB-5 projects would cause hundreds of EB-5 immigrant investors and their families to lose their investment funds and the opportunity to obtain a U.S. green card.A review of failed cases reveals that due diligence would have identified major red flags for the potential investors:

  • In February 2017, AnshooSethi, a regional center founder and administrator, was sentenced to three years in prison and ordered to pay $8.85 million in restitution for defrauding approximately $158 million from more than 290 investors.[v] The EB-5 offering documents for a hotel project in Chicago stated that Sethi was a “respected veteran of real estate” with “15 years of experience in real estate development and management.”[vi] However, background due diligence shows that Sethi would have had to enter the real estate industry at age 14 to have his purported 15 years of experience. Additionally, his development firm, Upgrowth LLC, which had a purported “more than 35 years of experience” and claimed a reputation as a premier nationwide hotel contractor, had only been organized in 2010, according to Illinois corporate records.[vii]

Proper background due diligence would also have revealed that Sethi’s regional center project was only recently granted permits for a tent for a “groundbreaking ceremony”, demolition, construction of a fence, and minor electrical wiring. This directly contradicted the project’s Offering Memorandum which claimed that all building permits had been secured.[viii]

  • In another matter, principals of Pacific Proton Therapy Regional Center were recently prosecuted by the SEC for misleading investors and diverting funds. Pacific Proton’s cancer center project had allegedly claimed the support of former President George H.W. Bush and former California Governor Arnold Schwarzenegger to garner investments. The support was false, however. Proper background due diligence could have disclosed these material misrepresentations and helped investors with the decision to seek out a different investment opportunity. Over $18 millions of funds raised from investors in this case was diverted to firms in China and personal bank accounts.[ix]
  • Elsewhere, an $8.5 million fraud perpetrated by Lily Zhong through EB5 Asset Manager LLC might have been foreseen if background due diligence had been undertaken on the project principal. The SEC’s complaint raised allegations that Zhong had misrepresented her “extensive history of developing real estate projects” and failed to disclose her personal and business bankruptcies to prospective investors. During the time Zhong was marketing the project to investors she was also the subject of an ongoing bankruptcy proceeding in New Zealand. Additionally, her role as a director and shareholder of a New Zealand real estate development company had resulted in a voluntary liquidation of the firm in 2008.[x]

Had potential investors conducted background due diligence and sustained ongoing monitoring, information on Zhong’s bankruptcies would have been uncovered. The misrepresentations of Pacific Proton and Sethi would also have been found. These investors could have retained their funds andtheir dreams of immigration to the U.S. 

Better Protection for Investors 

Recent fraud cases and failed projects have shown that engaging background due diligence on investment stakeholders is a necessary, yet often overlooked, step in the EB-5 process. Background due diligence involves the credential verification and comprehensive investigation into the personal history of key individuals. This can surface noteworthy red flag issues concerning financial history, litigation history, past and current insolvencies, bankruptcies, false claims of SEC and FINRA licensing, prior business and investment successes (and failures), false claims of specialized or industry expertise, and other potential concerns surrounding the regional center and the project developers. Paired with an advanced technology platform for ongoing background monitoring, an EB-5 investor can significantly reduce the risks of fraud, deception,and project failure with respect to their EB-5 investment not only at inception, but throughout the course of the extensive EB-5 process. Prudent investors will take this step.

For EB-5 investors, the life-cycle of the investment is long, increasing the risks. The potential motivations and opportunities for fraud will change over time, along with the regulatory landscape, and the economy. Enhancing the pre-investment due diligence process by incorporating comprehensive background checks of the project developer and the regional center’s main principals will allow investors to understand who is managing their money, and their immigration dreams. Ongoing, automated background monitoring of these stakeholders, through experienced industry professionals,is a prudent approach to mitigate the risks of a changing landscape and will create the greatest possibility for a successful path to U.S. EB-5 immigration.

[i] https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers

[ii] Private firms, approved by USCIS, that match EB-5 investors with development projects and job creation. Each EB-5 investor must demonstrate at least 10 jobs created because of the investment funds.

[iii] https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers

[iv] https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process/regional-center-terminations

[v] https://www.justice.gov/usao-ndil/pr/hotel-developer-sentenced-three-years-prison-exploiting-us-visa-program

[vi]https://www.sec.gov/litigation/litreleases/2014/lr22945.htm

[vii] Ibid.

[viii] Ibid.

[ix] https://www.sec.gov/litigation/litreleases/2016/lr23556.htm

[x] https://www.sec.gov/litigation/complaints/2015/comp2015-263.pdf

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Lockdown 2.0 – Here’s how to be the best-looking person in the virtual room

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Lockdown 2.0 – Here's how to be the best-looking person in the virtual room 1

By Jeff Carlson, author of The Photographer’s Guide to Luminar 4 and Take Control of Your Digital Photos

suggests “the product you’re creating is not the camera, the lens or a webcam’s clever industrial design. It’s the subject, you, which is just on e part of the entire image they see. You want that image to convey quality, not convenience.”

Technology experts at Reincubate saw an opportunity in the rise of remote-working video calls and developed the app, Camo, to improve the video quality of our webcam calls. As part of this, they consulted the digital photography expert and author, Jeff Carlson, to reveal how we can look our best online. 

It’s clear by now that COVID-19 has normalised remote working, but as part of this the importance of video calls has risen exponentially. While we’re all used to seeing the more casual sides of our colleagues (t-shirt and shorts, anyone?), poor webcam quality is slightly less forgivable.

But how can we improve how we look on video? We consulted Jeff Carlson for some top tips– here is what he had to say.

  1. Improve the picture quality of your call

The better your camera, the higher quality your webcam calls will be. Most webcams (as well as currently being hard to get hold of and expensive), are subpar. A DSLR setup will give you the best picture, but will cost $1,500+. You can also use your iPhone’s amazing camera as a webcam, using the new app from Reincubate, Camo.

Jeff’s comments “The iPhone’s camera system features dedicated coprocessors for evaluating and adjusting the image in real time. Apple has put a tremendous amount of work into its imaging software as a way to compensate for the necessarily small camera sensors. Although it all works in service of creating stills and video, you get the same benefits when using the iPhone as a webcam.”

Aidan Fitzpatrick, CEO of Reincubate explains why the team created Camo, “Earlier this year our team moved to working remotely, and in video calls everyone looked pretty bad, irrespective of whether they were on built-in Mac webcams or third-party ones. Thus began my journey to build Camo: an iPhone has one of the world’s best cameras in it, so could we make it work as a webcam? Category-leading webcams are noticeably worse than an iPhone 7. This makes sense: six weeks of Apple’s R&D spend tops Logitech’s annual gross revenue.”

  1. Place your camera at eye level

A video call will never quite be the same as a face-to-face conversation, but bringing your camera up to eye level is a good place to start. That can involve putting your laptop on a stand or pile of books, mounting a webcam to the top of your display screen, or even using a tripod to get the perfect position.

Jeff points out, “If the camera is looking down on you, you’ll appear minimized in the frame; if it’s looking up, you’re inviting people to focus on your chin, neck, or nostrils. Most important, positioning the camera off your eye level is a distraction. Look them in the eye, even if they’re miles or continents away.

Lockdown 2.0 – Here's how to be the best-looking person in the virtual room 2

Low camera placement from a MacBook

  1. Make the most of natural lighting

Be aware of the lighting in the room and move yourself to face natural lighting if you can. Positioning the camera so any natural light is behind you takes the light away from your face, which can make it harder to see and read expressions on a call.

Jeff Carlson’s top tip: “If the light from outside is too harsh, diffuse it and create softer shadows by tacking up a white sheet or a stand-alone diffuser over the window.” 

Lockdown 2.0 – Here's how to be the best-looking person in the virtual room 3Lockdown 2.0 – Here's how to be the best-looking person in the virtual room 4

Backlit against a window Facing natural light

  1. Use supplementary lighting like ring lights

The downside to natural lighting is that you’re at the mercy of the elements: if it’s too bright you’ll have the sun in your eyes, if it’s too dark you won’t be well lit.

Jeff recommends adding supplementary lighting if you’re looking to really enhance your video calls. After all, it looks like remote working will be carrying on for quite some time.

“The light can be just as easy as a household or inexpensive work light. Angle the light so it’s bouncing off a wall or the ceiling, depending on your work area, which, again, diffuses the light and makes it more flattering.

Or, for a little money, use a softbox or a shoot-through umbrella with daylight bulbs (5500K temperature), or if space is tight, LED panels. Larger lights are better for distributing illumination– don’t be afraid to get them in close to you. Placement depends on the look you’re going after; start by positioning one at a 45-degree angle in front and to the side of you, which lights most of your face while retaining nice shadow detail.” 

In some cases, a ring light may work best. LEDs are arranged in a circle, with space in the middle to put the camera’s lens and get direct illumination from the direction of the camera.

  1. Centre yourself in the frame

Make sure you’re getting the right angle and that you’re using the frame effectively.

“You should aim for people to see your head and part of your torso, not all the space between your hair and the ceiling. Leave a little space above your head so it’s not cut off, but not enough that someone’s eyes are going to drift there.”

  1. Be mindful of your backdrop

It’s not always easy to get the quiet space needed for video calls when working from home, but try as best you can to remove anything too distracting from your background.

“Get rid of clutter or anything that’s distracting or unprofessional, because you can bet that will be the second thing the viewers notice after they see you. (The Twitter account @RateMySkypeRoom is an amusing ongoing commentary on the environments people on television are connecting from.)”

A busy background as seen by a webcam

  1. Make the most of virtual backgrounds

If you’re really struggling with finding a background that looks professional, try using a virtual background.

Jeff suggests: “Some apps can identify your presence in the scene and create a live mask that enables you to use an entirely different image to cover the background. While it’s a fun feature, the quality of the masking is still rudimentary, even with a green screen background that makes this sort of keying more accurate.”

  1. Be aware of your audio settings

Our laptop webcams, cameras, and mobile phones all include microphones, but if it’s at all possible, use a separate microphone instead.

“That can be an inexpensive lavalier mic, a USB microphone, or a set of iPhone earbuds. You can also get wireless lavalier models if you’re moving around during a call, such as presenting at a whiteboard in the camera’s field of view.

The idea is to get the microphone closer to your mouth so it’s recording what you say, not other sounds or echoes in the room. If you type during meetings, mount the mic on an arm instead of resting it on the same surface as your keyboard.”

  1. Be wary of video app add-ons

Video apps like Zoom include a ‘Touch up your appearance’ option in the Video settings. This applies a skin-smoothing filter to your face, but more often than not, the end result looks artificially blurry instead of smooth.

“Zoom also includes settings for suppressing persistent and intermittent background noise, and echo cancellation. They’re all set to Auto by default, but you can choose how aggressive or not the feature is.”

  1. Be the best looking person in the virtual room

What’s important to remember about video calls at this point in time is that most people are new to what is, really, personal broadcasting. That means you can easily get an edge, just by adopting a few suggestions in this article. When your video and audio quality improves, people will take notice.

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Bringing finance into the 21st Century – How COVID and collaboration are catalysing digital transformation

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Bringing finance into the 21st Century – How COVID and collaboration are catalysing digital transformation 5

By Keith Phillips, CEO of TISATech

If just six or seven months ago someone had told you that in a matter of weeks people around the world would be locked down in their homes, trying to navigate modern work systems from a prehistoric laptop, bickering with family over who’s hogging the Wi-Fi, migrating online to manage all financial services digitally, all while washing their hands every five minutes in fear of a global pandemic… You’d think they had lost their mind. But this very quickly became the reality for huge swathes of the world and we’re about to go through that all over again as the UK government has asked that those who can work from home should.

Unsurprisingly, statistics show that lockdown restrictions introduced by the UK government in March, led to a sharp increase in people adopting digital services. Banks encouraged its customers to log onto online banking, as they limited (and eventually halted) services at branches. This forced many customers online as their primary means of managing personal finances for the first time.

If anyone had doubts before, the Covid-19 pandemic proved to us the importance of well-functioning, effective digital financial services platforms, for both financial institutions and the people using them.

But with this sudden mass online migration, it’s become clear that traditional banks have struggled to keep up with servicing clients virtually. Legacy banking systems have always stilted the digitisation of financial services, but the pandemic thrust this issue into the limelight. Fintech firms, which focus intently on digital and mobile services, knew it was only a matter of time before financial institutions’ reliance was to increase at an unprecedented rate.

For years, fintechs have been called upon by traditional players to find solutions to problems borne from those clunky legacy systems, like manual completion of account changes and money transfers. Now it is the demand for these services to be online coupled with the need for financial services firms to cut costs, since Covid-19 hit the economy.

Covid-19 has catalysed the urgent need to bring digital transformation to a wider pool of financial services businesses. Customers now have even higher expectations of larger institutions, demanding that they keep up with what the younger and more nimble challengers have to offer. Industry leaders realise that they must transform their businesses as soon as possible, by streamlining and digitising operations to compete and, ultimately, improve services for their customers.

The race for digital acceleration began far before the recent pandemic – in fact, following the 2008 financial crisis is likely more accurate. Since the credit crunch, there has been a wave of new fintech firms, full of young, bright techies looking to be the next big thing. Fintechs have marketed themselves hard at big conferences and expos or by hosting ‘hackathons’, trying to prove themselves as the fastest, most innovative or the most vital to the future of the industry.

However, even during this period where accelerating innovation in online financial services and legacy systems is crucial, the conditions brought about by the pandemic have not been conducive to this much-needed transformation.

The second issue, which again was clear far before the pandemic, is that fact that no matter how nimble or clever the fintechs’ solutions are, it is still hard to implement the solutions seamlessly, as the sector is highly fragmented with banks using extremely outdated systems populated with vast amounts of data.

With the significance of the pandemic becoming more and more clear, and the need for better digital products and services becoming more crucial to financial services firms and consumers by the day, the industry has finally come together to provide a solution.

The TISAtech project was launched last month by The Investing and Saving Alliance (TISA), a membership organisation in the UK with more than 200 leading financial institutions as members. TISA asked The Disruption House, a specialist benchmarking and data analytics business, to create a clearing house platform for the industry to help it more effectively integrate new financial technology. The project aims to enhance products and services while reducing friction and ultimately lowering costs which are passed on to the customers.

With nearly 4,000 fintechs from around the world participating, it will be the world’s largest marketplace dedicated to Open Finance, Savings, and Investment.

Not only will it provide a ‘matchmaking’ service between financial institutions an fintechs, it will also host a sandbox environment. Financial institutions can pose real problems with real data and the fintechs are given the space to race to the bottom – to find the most constructive, cost-effective solution.

Yes, there are other marketplaces, but they all seem to struggle to achieve a return on investment. There is a genuine need for the ‘Trivago’ of financial technology – a one stop shop, run by an independent body, which can do more than just matchmaking. It needs to go above and beyond to encompass the sandboxing, assessments, profiling of fintechs to separate the wheat from the chaff, and provide a space for true collaboration.

The pandemic has taught us that we are more effective if we work together. We need mass support and collaboration to find solutions to problems. Businesses and industries are no different. If fintechs and financial institutions can work together, there is a real chance that we can start to lessen the economic hit for many businesses and consumers by lowering costs and streamlining better services and products. And even if it is just making it that little bit easier to manage personal finances from home when fighting with your children for the Wi-Fi, we are making a difference.

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What to Know Before You Expand Across Borders

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What to Know Before You Expand Across Borders 6

By Sean King, Director of International Tax at McGuire Sponsel

The American retail giant, Target Corporation, has a market cap of $64 billion and access to seemingly limitless resources and advisors. So, when the company engaged in its first global expansion, how could anything possibly go wrong?

Less than two years after opening its first Canadian store in 2013, Target shut down all133 Canadian locations and terminated more than 17,000 Canadian employees.

Expansion of an operation to another country can create unique challenges that may impact the financial viability of the entire enterprise. If Target Corporation can colossally fail in its expansion to Canada, how might Mom ‘N’ Pop LLC fare when expanding into Switzerland, Singapore, or Australia?

Successful global expansion requires an understanding of multilayered taxes, regulatory hurdles, employment laws, and cultural nuances. Fortunately, with the right guidance, global expansion can be both possible and profitable for businesses of any size.

Permanent establishment

Any company with global ambitions must first consider whether the company’s expansion outside of the U.S. will give rise to a taxable presence in the local country. In the cross-border context, a “permanent establishment” can be created in a local country when the enterprise reaches a certain level of activity, which is problematic because it exposes the U.S. multinational to taxation in the foreign country.

Foreign entity incorporation

To avoid permanent establishment risk, many U.S. multinationals choose to operate overseas through a formal corporate subsidiary, which reduces the company’s foreign income tax exposure, though it may result in an additional level of foreign income tax on the subsidiary’s earnings. In most jurisdictions, multinationals can operate their business in the foreign country as a branch, a pass through (e.g., partnership,) or a corporation.

As a branch, the U.S. multinational does not create a subsidiary in the foreign country. It holds assets, employees, and bank accounts under its own name. With a pass through, the U.S. multinational creates a separate entity in the foreign country that is treated as a partnership under the tax law of the foreign country but not necessarily as a partnership under U.S. tax law.

U.S. multinationals can also create corporate subsidiaries in the foreign country treated as corporations under the tax law of both the foreign country and the U.S., with possibly two levels of income taxation in the foreign country plus U.S. income taxation of earnings repatriated to the U.S. as dividends.

Check-the-box planning

Under U.S. entity classification rules, certain types of entities can “check the box” to elect their classification to be taxed as a corporation with two levels of tax, a partnership with pass-through taxation, or even be disregarded for U.S. federal income tax purposes. The check the box election allows U.S. multinationals to engage in more effective global tax planning.

Toll charges, transfer pricing and treaties

When establishing a foreign corporate subsidiary, the U.S. multinational will likely need to transfer certain assets to the new entity to make it fully operational. However, in many cases, the U.S. multinational cannot perform the transfer without recognizing taxable income. In the international context, the IRS imposes certain outbound “toll charges” on the transfer of appreciated property to a foreign entity, which are usually provided for in IRC Section 367 and subject to various exceptions and nuances.

Instead, the U.S. multinational may prefer to license intellectual property to the foreign subsidiary for a fee rather than transfer the property outright. However, licensing requires the company and foreign subsidiary to adhere to transfer pricing rules, as dictated by IRC Section 482. The U.S. multinational and the foreign subsidiary must interact in an arms-length manner regarding pricing and economic terms. Furthermore, any such arrangement may attract withholding taxes when royalties are paid across a border.

Are you GILTI?

Certain U.S. multinationals opt to focus on deferring the income recognition at the U.S. level. In doing so, they simply leave overseas profits overseas and delay repatriating any of the earnings to the U.S.

Despite the general merits of this form of planning, U.S. multinationals will be subject to certain IRS anti-deferral mechanisms, commonly known as “Subpart F” and GILTI. Essentially, U.S. shareholders of certain foreign corporations are forced to recognize their pro rata share of certain types of income generated by these foreign entities at the time the income is earned instead of waiting until the foreign entity formally repatriates the income to the U.S.

The end goal

Essentially, all effective international tax planning boils down to treasury management. Effective and early tax planning can properly allow a company to better achieve its initial goal: profitability.

If global expansion is on the horizon for your company, consult a licensed professional for advice concerning your specific situation.

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