[Senate Hearing 112-939]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-939

REAUTHORIZING THE EB	5 REGIONAL CENTER PROGRAM: PROMOTING JOB CREATION 
                  AND ECONOMIC DEVELOPMENT IN AMERICAN
                              COMMUNITIES

=======================================================================

                                HEARING

                              BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 7, 2011

                               __________

                          Serial No. J-112-56

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                      COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                            
                            
                            
                            C O N T E N T S

                              ----------                              

                      DECEMBER 7, 2011, 10:01 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    50
Schumer, Hon. Chuck, a U.S. Senator from the State of New York,
    prepared statement...........................................    52

                               WITNESSES

Witness List.....................................................    25
Divine, Robert C., Attorney, Baker, Donelson, Bearman, Caldwell, 
  and Berkowitz, P.C., and Vice President, Invest In the USA 
  (IIUSA),
  Chattanooga, Tennessee.........................................     8
    prepared statement...........................................    41
North, David, Fellow, Center for Immigration Studies, Washington, 
  DC.............................................................     7
    prepared statement...........................................    32
Stenger, William J., President and Chief Executive Officer, Jay 
  Peak Resort, Jay, Vermont......................................     5
    prepared statement...........................................    26

                               QUESTIONS

Questions submitted to Robert C. Divine by Senator Grassley......    56
Questions submitted to Robert C. Divine by Senator Klobuchar.....    59
Questions submitted to David North by Senator Grassley...........    55
Questions submitted to David North by Senator Klobuchar..........    58
Questions submitted to William J. Stenger by Senator Grassley....    53

                                ANSWERS

Responses of Robert C. Divine to questions submitted by Senators 
  Grassley and Klobuchar.........................................    67
Responses of David North to questions submitted by Senators 
  Grassley and Klobuchar.........................................    60
[Note: At the time of printing, the Committee had not received 
  responses from William J. Stenger.]

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Atteberry, Kimberly, President, Vermilion Consulting LLC, 
  statement......................................................   116
Berthel Fisher and Company, Thomas J. Berthel, Chief Executive 
  Officer, December 5, 2011, letter to Senator Grassley..........   101
City of Amarillo, Hon. Paul Harpole, Mayor, Amarillo, Texas, 
  December 5, 2011, letter to Senator Hutchison..................    87
City of Dallas, Hon. Michael S. Rawlings, Mayor, Dallas, Texas, 
  November 28, 2011, letter to Senator Hutchison.................    79
City of Houston, Hon. Annise D. Parker, Mayor, Houston, Texas, 
  December 6, 2011, letter to Senator Cornyn.....................    92
City of Houston, Hon. Annise D. Parker, Mayor, Houston, Texas, 
  December 6, 2011, letter to Senator Leahy......................   140
City of New York, Hon. Michael Bloomberg, Mayor, New York, New 
  York, statement................................................   138
Civitas Capital Group, Daniel J. Healy, Chief Executive Officer, 
  statement......................................................    93
Civitas Capital Management, LLC, Daniel J. Healy, Managing 
  Partner,
  November 28, 2011, letter to Senator Cornyn....................    76
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  submission of eight letters and one statement..................   120
EB5 Capital, Angelique G. Brunner, President, Owner, DC Regional 
  Center, and Principal, EB5 Sugarbush, statement................   102
Greater Des Moines Partnership, The, Jay R. Byers, Senior Vice 
  President, Government Relations and Public Policy, December 5, 
  2011, letter to
  Senator Grassley...............................................    86
Greater New York Chamber of Commerce, Mark Jaffe, President and 
  Chief Executive Officer, December 5, 2011, letter to Senator 
  Leahy..........................................................    84
Harry's Cafe and Harry's Steak, New York, New York, November 30, 
  2011, letter...................................................   110
Hilton Worldwide, William B. Fortier, Senior Vice President, 
  Development--Americas, December 12, 2011, letter...............   113
Hyatt Hotels Corporation, Stephen G. Haggerty, Global Head Real 
  Estate and Development, December 14, 2011, letter to Senator 
  Leahy..........................................................   109
Iowa Economic Development Authority, Deborah V. Durham, Director,
  December 8, 2011, letter to Senator Grassley...................   114
LinkAmerica, Inc., Andres Ruzo, Chief Executive Officer, November 
  29, 2011, letter to Senator Cornyn.............................    80
Marriott International, Inc., Anthony G. Capuano, Executive Vice 
  President, Global Development, December 6, 2011, letter to 
  Senators Leahy and Grassley....................................    90
Matthews Southwest, Jack Matthews, President, November 28, 2011, 
  letter to Senator Cornyn.......................................    78
New York City Regional Center, Paul Levinsohn, Esq., Managing 
  Principal, and George Olsen, Esq., Managing Principal, 
  statement......................................................   141
Real Estate Roundtable, The, Jeffrey D. DeBoer, President and 
  Chief Executive Officer, December 5, 2011, letter..............    88
Spencer Crain, Elise A. Healy, Attorney at Law, December 2, 2011, 
  letter to Senator Leahy........................................    83
StoneGate Senior Living, LLC, John F. Taylor, Chief Executive 
  Officer,
  December 1, 2011, letter to Senator Cornyn.....................    81
Texas Association of Business, Bill Hammond, President, December 
  13, 2011, letter...............................................   144

 
REAUTHORIZING THE EB-5 REGIONAL CENTER PROGRAM: PROMOTING JOB CREATION 
            AND ECONOMIC DEVELOPMENT IN AMERICAN COMMUNITIES

                              ----------                              


                      WEDNESDAY, DECEMBER 7, 2011

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Grassley, Sessions, and Cornyn.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Good morning. Thank you for being here on a 
rainy, sloppy morning. I am hoping that in Vermont the 
temperature is 10 or 15 degrees lower because that would mean 
about 10 inches of snow, which we describe as something between 
a dusting and a snowfall back there.
    I thank our witnesses for joining us today to discuss the 
EB-5 Regional Center Program and its proven record of creating 
jobs in America. In 2011 alone, this program is on track to 
create an estimated 25,000 jobs and provide direct investments 
in American communities of $1.25 billion. And, of course, there 
is great potential to increase the program's annual benefits. 
If the full number of visas allocated to the program are 
utilized, based upon investment and job creation requirements, 
the program has the potential to create or preserve 100,000 
jobs per year, with contributions of $5 billion in foreign 
capital investment. That is as much of a win-win program as one 
could think of. The benefits come at no cost to American 
taxpayers. The program is and should continue to be an 
important component of our overall immigration system.
    Now, the current authorization for the program is set to 
expire at the end of September 2012, and I have talked with a 
number of Senators, both Republicans and Democrats, who believe 
along with me that it is critical that Congress support U.S. 
Citizenship and Immigration Services, which administers the 
program, along with the many men and women who are working hard 
to bring jobs to their communities, by enacting the permanent 
authorization legislation that I introduced in March of this 
year. I thank the Chairman of the Subcommittee on Immigration, 
Refugees, and Border Security, Senator Schumer, for joining me 
as a cosponsor of the legislation. I know that like many parts 
of the United States, from Alabama to Vermont, entrepreneurs in 
New York City have turned to financing through the EB-5 
Regional Center Program.
    Like any program, there is always room for improvement, and 
I commend Director Mayorkas at USCIS and Homeland Security 
Secretary Janet Napolitano for making the program a central 
part of the Department's contribution to the President's 
broader job creation efforts. The history of our Nation has 
been written in part through the contributions of immigrants. 
My maternal grandparents came to Vermont from Italy and started 
a small stone-carving business in South Ryegate, Vermont, as 
Mr. Stenger knows. That is up near his part of the State. The 
place does not have many jobs. It had a lot more jobs once they 
started their business. That is replicated in so many other 
areas, not only in our State but all 49 other States. And the 
EB-5 visa and other employment-based visa categories within our 
immigration system can play a meaningful role in writing our 
future economic resurgence.
    I have been working for many months with interested parties 
and USCIS to put together a legislative framework to make 
significant improvements to the overall program to provide them 
with additional authorities to ensure that the program 
maintains the highest level of integrity and efficiency. I have 
shared this framework with the Judiciary Committee's Ranking 
Member, Senator Grassley, and I hope we can work together to 
make the program an even more secure and effective job creator.
    But I think we should move forward with a permanent 
authorization without further delay. I think Congress has to 
show potential investors from around the world that America 
welcomes immigrant investors and values their contributions. If 
not, then we are going to lose those potential investors to our 
neighboring country of Canada or to the United Kingdom or to 
Australia or other nations that recognize immigration through 
investment and seek it out. We are already hearing that the 
uncertainty about the program's future is a drag on investment 
and on our economic recovery.
    We are going to hear from Bill Stenger of Jay Peak, 
Vermont. His work, financed in part through the EB-5 Regional 
Center Program, has revitalized a very rural part of Vermont. 
It has turned a beloved and iconic Vermont ski resort into a 
world-class, four-season resort. I know that when I go up there 
and I hear carpenters and plumbers and electricians from that 
area who live in that area tell me they are making more money 
than they have ever made before, and they have been able to do 
more for their kids, they can invest in the community, they are 
seeing the training they had as Vermonters pay off, and now 
they are actually making money in an area where there was not 
much money to be made, it really makes this Vermonter happy.
    In Texas, the city of Dallas has recently entered a 
partnership with a capital management firm to create the City 
of Dallas Regional Center to create jobs for the people of 
Dallas. Companies like Marriott Hotels and Lennar Homes have 
turned to the EB-5 program to finance job-creating projects 
around the country. So this is happening all over, and, again, 
I think that is why we have support for this from both 
Republicans and Democrats. But I would like to see--I will put 
my full statement in the record, but I would like to see this 
become permanent so that investors can plan.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Grassley.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman.
    This program and its regional centers, now 21 years old, 
was created to benefit American communities through investment 
and job creation. Certainly at a time of economic uncertainty, 
high national unemployment, and stagnant growth, we must 
consider all tools at our disposal to increase economic 
activity.
    While I supported the EB-5 Regional Center Program in the 
past, I hope to hear how this program can better serve our 
Nation's needs in the future. Today's hearing is a way for us 
to conduct our constitutional duty of oversight. It is 
important for us to review the EB-5 program to determine how 
many jobs are created and hear whether the program is 
increasing economic activity in the areas most needed.
    I hope to work with the Chairman on reauthorizing a 
reformed and cost-effective program in addition to several 
other immigration programs that will expire at the same time. 
We need to enact reforms that will make the EB-5 Regional 
Center program worthy of its goals.
    Some may argue that the EB-5 Regional Center Program is 
doing very little to stimulate the economy. I appreciate the 
administration's recent attempts to focus energy and attention 
on reforming the program and increase participation in regional 
centers. The changes they institute will help, but at the end 
of the day, one fact remains. The program is simply a way for 
wealthy investors to buy a green card, not only for themselves 
but for their families. No skills or management experience are 
needed. One only needs to write a check to gain entry into the 
United States. While taking a financial risk in projects or 
businesses in the United States is admirable, evidence suggests 
that it is not doing enough to spur job creation.
    Since Congress kept the number of employment-based 
immigrants that are allowed to enter the United States each 
year, it is important that we utilize those visas to the best 
extent possible. We must have an immigration system that is 
based on merit. We should be taking the best and the brightest. 
We can afford to be choosy, so we must elect to provide 
immigrant visas to those with tremendous skills that will 
benefit our country in the long term.
    So, in that vein, we must figure out where the EB-5 
Regional Center Programs fit into this equation. I have the 
question of whether or not the EB-5 program attracts the 
individuals we need or are we simply selling visas to the 
highest bidders.
    I want to take a moment to express serious concern about 
reports that the EB-5 Regional Center Program is creating jobs 
for people in this country illegally. The U.S. Citizenship and 
Immigration Services Administrative Appeal Office reviewed the 
applications for one investor in the South Dakota Regional 
Center. The AAO said that the agency was correct in denying his 
request for green card status because the employees were in the 
country illegally. If we are going to allow wealthy foreigners 
to enter the United States to create jobs, I would sure hope 
that U.S. citizens are the benefactors. I would like to hear 
today about how the centers create jobs, how they report this 
information to the Federal Government, and whether the USCIS is 
doing substantial auditing of centers to verify the information 
received from the regional centers.
    We must also do a better job of rooting out abuse in EB-5 
promoters abroad. Reuters recently reported on how cash-hungry 
American businesses are working abroad to promote EB-5 Regional 
Center Programs. Many of these EB-5 promoters are 
mischaracterizing the program, luring investors here and 
robbing them of the American dream. In fact, China has 
reportedly put restrictions on these promoters. When asked by 
Reuters, both the USCIS and the Securities and Exchange 
Commission were unaware of any marketing abuses. Maybe it is 
time that these agencies figure out what is truly going on.
    I would like to work with Chairman Leahy on ways to 
strengthen the oversight over the program. I think he may have 
some good ideas on doing that, including requiring more 
reporting by the centers and ending centers that are not 
producing as they promised.
    In addition to restoring program integrity, I think it is 
important to consider whether the dollar amount should be 
raised. They have remained $500,000 and $1 million since the 
early 1990s.
    Finally, we must close any loopholes that allow a foreign 
investor to bring capital to the table, receive a green card, 
and then withdraw his financial support and walk away from the 
regional center. I realize that we have testimony from every 
single regional center program citing the benefit foreign 
investment has provided their community. I appreciate Mr. 
Stenger appearing before us again today and sharing with us how 
the program has benefited Vermont.
    Conversely, I look forward to hearing from Mr. North, a 
Fellow at the Center for Immigration Studies. Mr. North will 
provide a different perspective.
    I also look forward to hearing from Mr. Divine, who had 
experience in overseeing the operation of the program when he 
worked as Chief Counsel and Acting Director of the U.S. 
Citizenship and Immigration Service.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you, and I can assure you I 
will work with you on what we can do to make this permanent. I 
know Senator Sessions and Senator Cornyn on this Committee and 
Senator Schumer and others have expressed an interest in going 
forward with the program, and I am happy to work with them. I 
just want to bring enough stability into it so that people can 
plan.
    Now, William Stenger, our first witness, comes to us today 
from my home State of Vermont, as I have said. He is currently 
the president and chief executive officer and co-owner of the 
Jay Peak Resort in Jay, Vermont. He has served as the chairman 
of the Vermont Ski Areas Association and was chairman of the 
Vermont Travel Council from 1998 to 2007. The Vermont Chamber 
of Commerce in a statewide vote selected him as the 2011 
Citizen of the Year for his work in transforming Jay Peak into 
a four-season resort, and also not just for what he has done 
for Jay Peak, but the huge amount of economic development it 
has created in the Northeast Kingdom of Vermont. Mr. Stenger 
was instrumental in creating the Vermont Regional Center in 
1997.
    I would note also for the record that both he and his wife 
are personal friends of me and my wife. We value their 
friendship, and I especially value all the jobs you created up 
there.
    Mr. Stenger, please go ahead.

          STATEMENT OF WILLIAM J. STENGER, PRESIDENT,
                 JAY PEAK RESORT, JAY, VERMONT

    Mr. Stenger. Mr. Chairman and Senator Grassley, thank you 
for this opportunity to be before you today. My name is Bill 
Stenger, and I am president and co-owner of Jay Peak Resort 
located in Jay, Vermont.
    I am very appreciative of this opportunity to meet with you 
today and share with you my perspective on the significant 
value the EB-5 foreign investor Regional Center Program 
represents to my employees, my community, and the State of 
Vermont and why I urge Congress to make this program permanent.
    My company, Jay Peak Resort, was founded in 1955 as a 
winter ski resort. It is located in Orleans County, 3 miles 
from the Canadian Border. George Aiken, one of Vermont's most 
revered U.S. Senators, called the northern region of Vermont 
the ``Northeast Kingdom'' because of its beauty and authentic, 
hardworking people.
    Orleans County is a place of great rural agricultural 
character, with beautiful mountains, streams, and lakes, but it 
also has the most significant unemployment and economic 
challenge of any region in Vermont.
    However, despite these facts, I am very optimistic about 
the economic future of our community and its citizens. We are 
seeing at our facilities the significant creation of the 
biggest positive life changer a person needs--a job. A job that 
will sustain them and their families with benefits, and a 
future that inspires and rewards their economic and human 
spirit. We are seeing this employment creation at Jay Peak and 
our surrounding rural communities in this terribly troubled 
economic time solely because of the EB-5 foreign investor 
program.
    In 1997, I had the opportunity to work with you, Mr. 
Chairman, and at the time Governor Howard Dean to create the 
Vermont Regional Center and its first EB-5 Pilot Project in 
Vermont. In 2004, because of improved CIS efforts and the 
renewed commitment of our State officials led by Governor Jim 
Douglas, the EB-5 program became truly functional from our 
perspective in Vermont.
    Since 2005, Jay Peak has developed several EB-5 projects at 
the resort creating over 2,000 jobs in our region and over the 
next 2 years will create that number of jobs again in this 
northern rural community.
    The EB-5 program has provided us the most important tool we 
need to build our business and create economic energy: 
affordable equity capital.
    Affordable capital is almost non-existent in this 
marketplace. However, through the EB-5 Regional Center Pilot 
Program, Jay Peak has raised over $250 million of equity 
capital by welcoming over 500 investors from 56 countries. This 
capital has helped us build year-round facilities that we 
desperately need in order to be competitive, but also helps us 
create full-time job opportunities for so many citizens 
throughout northern Vermont's highest unemployment communities.
    The EB-5 program is a win-win-win program for all involved. 
Jay Peak is gaining access to equity capital to create 
facilities it needs, and by doing so scores of quality year-
round jobs are created in a rural, high unemployment area where 
our Government wants to see job creation.
    In exchange for the job-creating equity capital investment, 
the foreign investor benefits from a green card for themselves 
and immediate family members. I have met personally almost 
every investor participating in the Jay Peak program. They are 
a group of wonderful people, so appreciative of the opportunity 
to live in and contribute to our society. I can tell you that 
their equity investment is changing our region in a profound 
and positive way. Once in the United States, they have 
continued to contribute as every one of them are well-educated, 
successful people who have brought their family values and 
capital with them. They are now living throughout the United 
States and contributing to the communities they live in.
    The success of Jay Peak's EB-5 program has now led to other 
important job-creating projects in our community. Ariel Quiros, 
my partner in Jay Peak, and I have created AnC Bio Vermont, a 
biotech research company that will employ 200 people in 
Newport, Vermont, and will open in 2012-13. EB-5 investment has 
made this possible. We are also working on additional Orleans 
County commercial facilities, affordable housing and 
infrastructure programs, all scheduled for 2012 and 2013, 
resulting in several thousand more job opportunities--all EB-5 
funded, all with overwhelming community support and significant 
economic impact. However, unless this program is extended, none 
of these job expansions will take place.
    I would like to close by mentioning a few things that will 
make the EB-5 program better for all concerned.
    Congress must make this program permanent so regional 
centers can concentrate on developing quality programs and 
long-term job-creating programs. The short-term extensions that 
have taken place in the past cripple the effectiveness because 
the projects cannot plan correctly and potential investors will 
not have the confidence to stick with the program because of 
its uncertainty.
    USCIS should make every effort to be as efficient as 
possible with swift EB-5 case processing so that predictability 
can become a program asset and not a program concern.
    Mr. Chairman, Senator Grassley, thank you again for this 
opportunity. I look forward to answering questions you might 
have in a few minutes.
    [The prepared statement of William J. Stenger appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Stenger.
    Our next witness is David North, a Fellow at the Center for 
Immigration Studies, which is a Washington, DC, think tank. He 
joined in 2008. In addition to posts in Federal and State 
government, he is a former Assistant Secretary of Labor, and he 
has conducted immigration policy research for several decades.
    Mr. North, welcome. Please go ahead.

   STATEMENT OF DAVID NORTH, FELLOW, CENTER FOR IMMIGRATION 
                    STUDIES, WASHINGTON, DC

    Mr. North. Thank you, Mr. Chairman, Senator Grassley. We 
are gathered here to discuss what I think is, contrary to what 
my friend to the right just said, a dysfunctional portion of a 
silly program which should be allowed to wither and die.
    As background, the INA and its employment-based section 
permits aliens to secure green cards by investing various sums 
in the Nation. This is the program for the fifth and lowest 
priority of aliens coming through the employment-based section, 
therefore it is called EB-5. The most troublesome part of the 
EB-5 program relates to the regional centers, largely private, 
for-profit entities--not true in Vermont--that identify 
investments that can provide green cards to aliens making half-
million-dollar short-term investments. That sum allows the 
alien and his family after 2 years to secure a full set of 
green cards.
    The other part of the program permits the issuance of green 
cards for a full-million-dollar investment without reference to 
the regional centers. It is the regional center part of the 
program which is up for reauthorization, not the larger 
program, which has some of its own problems. My conclusions 
about these programs come after examining the American program 
from the outside fairly carefully and after having been 
retained by the Government of Australia some years ago to 
evaluate its somewhat comparable program from the inside. There 
are seven reasons for my views.
    First, the program is placed in a very odd and non-helpful 
bureaucratic location for the stimulation of international 
investment in the United States.
    Second, its scale is all wrong. We are giving away too much 
for too small of an investment. Further, raising venture 
capital half a million dollars a tranche is, to say the least, 
inefficient. The big guys do not do it that way. The regional 
centers, with their half-million schemes, essentially undercut 
the more sensible million-dollar part of the EB-5 program.
    Third, such programs, if we have them at all, as they do in 
Australia, should be about creating business entities, not 
passive investments. It should be about creating real jobs, not 
elaborate calculations about the indirect creation of jobs, 
which is now part of the legislation.
    Fourth, the EB-5 program by its nature attracts sub-par 
investments and often scandals. Perhaps that is one of the 
reasons why it has failed year after year to reach the 
legislative goal of 10,000 investment visas.
    Fifth, the Regional Center Program is inherently clumsy, 
and the program is too filled with middlemen, both public and 
private. The program has more than its share of scandals, which 
I will get into later if anybody is interested.
    Sixth, it should not be streamlined, which is what USCIS is 
currently suggesting. This is an agency that loves to say yes 
to applicants, but as the table in my testimony shows, USCIS 
officers have much more trouble with EB-5 applications than 
others. I think that is something that nobody has really talked 
about much. There are high rates of internal denials in this 
program and for good reason. Some of the paper they see must be 
pretty dreadful.
    Seventh, in this program visas go to people who could not 
get them any other way and to people whose planned investment 
is actually less, according to the Federal Reserve, than the 
average mean net worth of all American families in 2007.
    Let me expand on one of my observations. In 2009, total 
foreign investment in the United States increased by $1.9 
trillion, according to the Department of Commerce. My estimate 
based on the investors' green card applications filed 2 years 
after the first investment--these are the solid ones that 
remain and are approved. This is 2009--was that they had about 
$191 million confirmed--that is my estimate. USCIS does not 
provide the kind of data that we could use on this. And that 
was a good year for the program. So for every $100 of increased 
foreign investment that year, the EB program contributed one 
penny.
    Under a much more wobbly statistical base, the initial 
applications of would-be immigrant investors, USCIS is telling 
journalists that the level of investment in the just-concluded 
year was about $1.2 billion. Let us accept that. But even that 
number makes that ratio only 6 cents for every $100 of 
additional foreign investment in a typical year.
    Thank you for listening to me. I look forward to your 
comments and questions.
    [The prepared statement of David North appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    Our next witness is Robert Divine. He is a shareholder of 
Baker, Donelson, Bearman, Caldwell, and Berkowitz. He is the 
head of the firm's immigration practice group. Mr. Divine 
served as Chief Counsel of the United States Citizenship and 
Immigration Services from July 2004 until November 2006, the 
year in which he was Acting Director, and then Acting Deputy 
Director. He has worked extensively with the EB-5 program in 
private practice. He was elected, as I understand, vice 
president of the Association to Invest in USA, the national 
industry association of regional centers.
    Mr. Divine, we are delighted to have you here. Please go 
ahead, sir.

   STATEMENT OF ROBERT C. DIVINE, ATTORNEY, BAKER, DONELSON, 
BEARMAN, CALDWELL, AND BERKOWITZ, P.C., CHATTANOOGA, TENNESSEE, 
         AND VICE PRESIDENT, INVEST IN THE USA (IIUSA)

    Mr. Divine. Thank you, Mr. Chairman, Senator Grassley, and 
others. Thank you for having me.
    I have submitted written testimony, and I am not going to 
read from it. It is there and I hope it provides useful 
background.
    Chairman Leahy. It will be part of the record.
    Mr. Divine. And it will be part of the record, so I thank 
you for that. I will try to just give a brief bit of 
information that might put things in perspective and respond to 
a few questions that Senator Grassley embedded in his comments.
    Yes, the investor visa, this EB-5 program, is one of many 
ways that we allow immigrants to come to the United States. At 
most, if all 10,000 slots were used, it would be 1 percent of 
the immigration annually to the United States. It is not near 
that yet, but it is growing and getting toward that.
    Particularly as USCIS, the agency that oversees the 
program, has been making the rules clearer and the processes 
more rational and clear for the people who are organizing 
investments and for the investors who are investing, more 
people have been willing and able to put effort and money into 
the process to find good projects and develop them, and then 
more investors have been willing to invest their money and take 
the risk and use the money to create the jobs that is the point 
of the program.
    If the agency can continue to speed their adjudication, 
which they are trying to do--they are staffing up--that will 
really help to improve the number of projects, the quality of 
projects, and help the program meet its potential, because 
people need to be able to get the approvals quickly in order to 
take advantage of the opportunity for whatever project is 
there. These projects do not wait around forever, and USCIS 
understands that and are trying to speed the program, speed the 
process.
    That does not mean that they are relaxing their scrutiny, 
and, in fact, they are ready to deny applications that are not 
qualifying. And they do so, as was mentioned.
    The EB-5 program or category is permanent in the code. The 
regional center part of the program is not. It is part of an 
appropriations bill that was enacted in 1992, and since then 
that program has been extended five times for 19 years. It is 
time for it to be permanent, and it needs to be done now and 
not nearer to the date of expiration in September. People need 
to plan. The process takes a good while to work up a project 
and then to get the investors approved. And they do not want 
their money flowing through until they have been approved. And 
the specter of the expiration of this Regional Center Program 
in September is already discouraging the development of 
projects. So it really matters to do it now and not later.
    I would like to clarify that the Regional Center Program is 
not the same as the half-million-dollar thing. The idea of half 
a million or a million is a function of the regular EB-5 law 
that is part of the code. It just is a reality that most of the 
regional centers that are pooling investments have set those in 
places of high unemployment or in rural areas where half-
million-dollar investments are allowed, and that makes sense. 
But it is not--those two are not necessarily tied together.
    I think at this point I would emphasize in terms of the 
dollar number, half a million dollars versus a million, it is a 
good question. You know, is half a million dollars enough? The 
idea of that level that is set in the code was that that amount 
could be used if it is in a certain targeted area of high 
unemployment or in rural areas. I guess the program has worked 
in that almost all of the investment has been spurred in those 
kinds of areas.
    But half a million dollars is a lot of money. It is a lot 
of money for one person to put in one risky project, and if you 
put together a bunch of half million dollars in a pool in a 
project, that can be a big project, and it can create a lot of 
jobs.
    I think I will stop there and be happy to answer questions.
    [The prepared statement of Robert C. Divine appears as a 
submission for the record.]
    Chairman Leahy. Well, I appreciate that very much, and let 
me ask a few questions.
    Mr. Stenger, you have been involved with this program for 
many years. Obviously, in the kind of business you are in, you 
have to look for investment and financing opportunities 
wherever you can. Tell me about what opportunities you have 
been able to pursue because of financing through EB-5.
    Mr. Stenger. Senator, we have been able to expand our 
resort that, as I said earlier, was founded in 1955, a very 
popular ski resort. Our goal from a business standpoint is to 
convert it to a year-round facility. We are currently 
employing--this coming winter we will employ over 1,200 people 
at the resort itself. A year from now, that will exceed 2,000.
    Because of the success of our EB-5 program and the job 
creation that we are seeing at Jay Peak, we are also seeing 
opportunities to develop investment in our region in areas like 
technology, manufacturing, infrastructure development, and it 
has been because of the EB-5 funding that we have been able to 
develop that these other opportunities are taking place.
    Now, you are very familiar with our region of Vermont. It 
is all small businesses. Mr. North was mentioning that the big 
guys do not raise money this way. Well, we are a small company 
in a rural part of Vermont, and raising capital this way has 
been effective for us. We are changing the lives of many 
hundreds of people in our region. The $500,000 investment is a 
marketable thing for us. We have worked hard at it, and we are 
changing the landscape of the economy in an otherwise 
incredible difficult time.
    So I would tell you that the EB-5 program has helped us 
build our company, but we are also making an impact on other 
businesses and other opportunities in our region at a time when 
development is just not taking place elsewhere.
    Chairman Leahy. Well, you mentioned Mr. North. He has also 
said that this money is more likely to show up in decaying ski 
resorts in Vermont. I realize if you work at a think tank 
inside the Beltway the idea that somebody would actually 
believe in a ski resort--I mean, this is a town that will close 
down in 3 inches of snow. We stay open with 2 feet of snow 
overnight. But let me ask you this: You have traveled 
extensively. You have talked to many potential investors around 
the world. We have these current short-term authorizations. 
What kind of reaction do you get from these investors around 
the world when they see us going from short-term to short-term 
to short-term reauthorizations?
    Mr. Stenger. Senator, in a word, it is uncertainty, and 
with uncertainty goes the question of whether or not an 
investor should participate in a program. Having a permanent 
authorization will give projects the opportunity to plan and 
develop good programs and good projects, but it also gives the 
investor the sense of confidence that what they become involved 
in will have an opportunity to be developed to its completion.
    Chairman Leahy. Well, let me ask a little bit more about 
that. You talk about having, when this is finished, up to 2,000 
people working there. I know this area very, very well, as you 
have mentioned, and an awful lot of the jobs there are minimum 
wage jobs when they are available at all. It had the highest 
unemployment rate before you started doing this in the State.
    I get the impression, talking to carpenters and plumbers 
and electricians there, that they are doing a lot better than 
they did before. Is that correct?
    Mr. Stenger. I would tell you that the workforce that is 
involved in our programs, there are two kinds of workers. There 
is the developmental group, and then there is the operational 
group. The developmental group are the construction workers. I 
happen to bring a photo with me--and I will share it with you 
afterwards--of just a fraction of the construction workers that 
were involved in this past winter, last winter. We had 550 
construction workers on our project in northern rural Vermont. 
It was the largest construction project in the State. A 
profound economic impact. Now that the construction is nearing 
completion and we are going on to other construction programs, 
the operational aspect of the facility kicks in. And we are 
increasing our full-time employment this year by over 500 
people alone just this year. So it is a remarkable 
transformation, and it is taking place in a rural community 
that, without this program, none of this would be going on.
    So I have to just restate what an important win this is for 
our community, what an important win it is for the State of 
Vermont in terms of job creation. And, of course, it is a win 
for the investor because they get access to coming to this 
country. But I would restate again what--in our particular 
case, we have doctors, lawyers, engineers, accountants, 
entrepreneurial people, all part of our investment group 
bringing their skills, their education. They are living around 
the country. They are making contributions to their 
communities, and they have certainly made a contribution to the 
success of our community, and I am very grateful for that.
    Chairman Leahy. It is not what you would call a decaying 
ski resort.
    Mr. Stenger. No. I would just share that we are about to 
really kick the ski seasons off in Vermont. We will welcome 4 
million skiers to the State. We have 16 wonderful ski areas. It 
is 25 percent of our economy. We have 12,000 employees in our 
industry, and we are not decaying. We are thriving, and we are 
a wonderful place to visit, and I invite you all to come.
    Chairman Leahy. The number of millions you are talking 
about, I should just note for the record, Senator Grassley, we 
are a State of 650,000 people, so that has a multiplier effect.
    But you have heard that these EB-5 programs that immigrants 
who come here have nothing to offer our Nation other than their 
initial investment. But you said in the past that you make it a 
point to get to know your investors. Would you agree they have 
nothing to offer us other than their money?
    Mr. Stenger. No, I could not disagree more. One of the 
great benefits for me personally in this program has been the 
opportunity to meet and welcome almost every investor to our 
facility. We have 500 investors from 56 countries. I have met 
personally 95 percent of them, welcomed them to the area, shown 
them what we are doing. They have seen firsthand the impact 
that their investment is making. They have walked the property. 
They have seen the hundreds of construction workers. They take 
great pride in what we are doing. They take great pride in the 
fact that they are a partner in that effort. They see the job 
creation. They see the gleam in the eyes of the employees that 
know they have got a future. And they are proud of it.
    They are skilled, educated people. As I said, they are 
living in various States around the country, professional 
people, well educated, many of them engineers, scientists. They 
are a wonderful group, and they are all family people. And I 
have been proud to meet them and proud to welcome them.
    Chairman Leahy. Also, as my last question, in some of the 
testimony this morning there has been a suggestion that, of 
course, just with all the hundreds of billions, trillions of 
dollars ready to invest, you should just go somewhere else. 
Have you found that in this current economic environment it is 
that easy to go somewhere just to raise money?
    Mr. Stenger. I would tell you that in this climate the 
ability to raise capital for the things we are doing would 
have--it is impossible to do so in a manner that would allow us 
as effectively and as quickly create the things we have done. 
You can borrow money if you have got 50 percent down. And if we 
have--we are just opening a $25 million indoor water park 
facility. I could have borrowed half of that if I had the $12 
million in cash to put up. Everyone knows that, yes, banks have 
money to loan as long as you have got half of it in your pocket 
before you ask for the other half. That is not how business 
works these days.
    Chairman Leahy. You are speaking from a real-world 
experience, not from a think tank experience. I will leave that 
simply as a gratuitous comment from the Chairman.
    Senator Grassley.
    Senator Grassley. Thank you.
    I want to be responsible in this issue of undocumented 
workers. I want to admit that we only have anecdotal 
information, but I would like to ask you to what extent you 
have to go or do go to make sure that the centers make sure 
that the investments do not create jobs for people here 
illegally. And I might also add to that whether or not it is 
the center's responsibility, it is the investor's 
responsibility, or the business that is involved.
    Mr. Stenger. Senator, I am a hands-on owner of a business, 
and I am on-property every single day. We have hired--as I 
said, at the Peak we had 550 construction workers on our 
project. The marching orders that I gave to my team is that we 
are to hire local companies in almost every instance to do all 
of the construction. We know these companies. They are made up 
of 10, 15, 20, 30 employees. They are from our local counties. 
They are Vermonters. They are benefiting directly from the 
investment.
    So we are a hands-on facility. I know the workers, I know 
their families, and we have been able to employ--through these 
last 3 years of terrible economic turmoil, we have been able to 
employ almost every construction worker in our county and the 
surrounding counties. They are U.S. residents. They live in the 
area. Their families are there. They are invested in the 
communities, and they are all U.S. workers.
    Senator Grassley. You do not have to use e-verify, but I 
would like to know whether or not you do.
    Mr. Stenger. We do.
    Senator Grassley. You do. Okay. Thank you.
    Mr. North, along the same lines of the question I asked 
him, has your research shown examples other--and I only gave 
one example, so I want to admit that and be responsible about 
it--of centers hiring undocumented individuals?
    Mr. North. That kind of data is very hard to obtain from 
USCIS, and I must say that what we do know about many of the 
internal things about that agency as far as this program is 
concerned relates to cases in which the staff has said no to an 
application of some kind and then the regional center or the 
individual entrepreneur has gone to the Administrative Appeals 
Office--which is part of the agency--and there we get 
documents, we get a hearing officer telling us what is going on 
in that particular case. There were 28 cases that were appealed 
in the year, I think, 2009, and in every single case the AAO 
hearing officers, administrative law judges, said, ``Yes, the 
staff was right. This is a bad application.''
    So there is a quantity of bad applications out there, but 
only once that process gets before an administrative law judge 
do we see much in the way of detail.
    Now, there was one case that you mentioned, and let me just 
elaborate on that a little bit. This is a bankrupt--and there 
is a lot of this going on--dairy farm in South Dakota that was 
funded by----
    Senator Grassley. Do not take too long because I want to 
ask another couple questions. But go ahead and quickly finish.
    Mr. North. The dairy farm had claimed 17 workers, and they 
got into it, and the judge found that 16 of them were illegals. 
Now, that is the one example I have, and it is a good example.
    Senator Grassley. Okay. I am going to ask separate 
questions of each of the three of you, but it deals with this 
one issue. As I said in my opening statement, I am concerned 
about the potential loophole that allows investors to withdraw 
their investment in regional centers after receiving their 
green card. So, Mr. Divine, are you aware of any instances in 
which an investor withdrew the investment and walked away 
immediately after receiving a green card? And if you are, or if 
you think it is a problem, do you think that it is a loophole 
that should be closed?
    Mr. Divine. I would say that most of the investors, if you 
asked them what are their goals, they would say, ``I want to 
get a green card, and I want to keep it. In order to keep it, I 
will need to see the jobs created in the time frame that they 
need to be created.''
    Two, ``One of these days I want to get my principal money 
back. I do not want to lose my money.''
    And, three, ``I would like to make some money if I can.'' 
Those are their priorities.
    Sure, would they like to get their money out of a 
particular investment quicker after the conditions are removed 
from their permanent residence? I would say most people 
probably would say, ``Yes, I would like to realize some gain 
from that investment and then diversify.'' Ask anybody who has 
made a bunch of money in any investment, they will tell you 
that. But, in reality, very few of these investors have been 
able to take their money out. If I put my money in a hotel 
development----
    Senator Grassley. Can I assume then that you are saying 
that there does not need to be any changes made in that regard?
    Mr. Divine. I do not think so.
    Senator Grassley. Okay. Let me ask Mr. Stenger, is it 
common for an investor in your experience to withdraw his or 
her investment immediately after receiving a green card?
    Mr. Stenger. Senator, no. Our programs require that the 
investor be invested for a minimum of 5 years and be paid back 
only if the business is in a position to do so at the end of 
that time. So we have the benefit of the capital to create the 
business, get it running, make it successful, assure that the 
jobs will be created and maintained, and then only if the 
business is successful will there be an exit strategy for the 
investor.
    Senator Grassley. And, Mr. North, do you have any comment 
in regard to my question or what the other two witnesses have 
suggested?
    Mr. North. Yes, I do. Very quickly, the law says you can 
take the money out after 2 years. In some cases you will find 
that that is maybe not a good idea. Or maybe the investee will 
not let you. But the law says you have got to invest for 2 
years and that is all.
    Second, at one of the stakeholders meetings put on by 
USCIS, I asked a question: Have you done any research on how 
much money stays beyond the 2 years? And the answer was no. 
There is sort of a lack of curiosity in that agency about some 
of these things.
    Senator Grassley. Thank you, Mr. Chairman. I would like to 
have a second round.
    Chairman Leahy. Certainly.
    Let me just ask, Mr. Divine, you hear this criticism that 
the money only has to remain invested for 2 years. Has that 
been your experience?
    Mr. Divine. If money gets put into a hotel, as I was 
beginning to explain earlier, the developer of that project 
would have to be able to find somebody to buy the hotel or 
would have to be able to find somebody to refinance it with 
other money. That is not easy. It is not any easier necessarily 
than when it was in the conditions that led to the foreign 
investors being the best option for financing the thing in the 
first place.
    But, hey, if it is a successful project, it makes money, 
and it can be sold, I do not see any reason why the project 
should not be able to be sold and for the investor to be able 
to realize the return of his investment, maybe gain on his 
investment, just like every other investor.
    Chairman Leahy. If you have a project that is funded 
directly through the Immigrant Investor Program and it is 
believed to be employing undocumented workers, Immigration and 
Customs Enforcement could investigate the employer, could they 
not?
    Mr. Divine. They could. I mean, I think what we need to 
realize also is that the case that is being cited as evidence 
that sometimes these projects have hired an unauthorized worker 
is one in which USCIS did some kind of checking and determined 
that the worker was not authorized and stopped it. I mean, the 
process worked.
    Chairman Leahy. But that would be the same with any 
company.
    Mr. Divine. Every one of these employers is required to 
complete the I-9 form, but USCIS goes a step further and does a 
check of some kind that led to the case that has been 
mentioned.
    Chairman Leahy. I am not a witness here, but I am so struck 
by Mr. North speaking of these decaying ski resorts in Vermont 
and the suggestion that this is not creating jobs. I mean, I 
recommend that all of you actually--Mr. North, in your case, 
get out from inside the Beltway and go up there and talk with 
some of these people. For one thing, you do not have too many 
illegal immigrants who quite have the Vermont accent you hear 
around there, especially when they talk about their 
grandparents who live there, and parents and so on. In fact, 
you almost need a simultaneous translation. They will say, ``We 
have got about nine of us here, and we have been here since 5 
o'clock this morning, Mister.''
    [Laughter.]
    Chairman Leahy. Not quite what an illegal immigrant might 
be saying. In fact, I think Mr. Stenger would say that one of 
his British investors was thinking, ``Are we all speaking the 
same language here?''
    Mr. Divine, let me ask one more serious question about the 
short-term authorizations we have had in the program. I asked 
Mr. Stenger this. Let me ask you what your experience is as a 
former agency official. What does it do if Congress keeps 
running up against a last-minute reauthorization? In this case 
it would be, I think, September of next year, September of 
2012. What does that do to an agency trying to administer a 
program if Congress waits until the last few days to 
reauthorize it? What is the practical effect?
    Mr. Divine. I mean, the agency in effect is--USCIS is a 
fee-funded agency, so it is essentially kind of running a 
business and has to cover its expenses with the income that is 
generated. To run this program correctly, USCIS needs to staff 
up in a big way, dealing with the volume that is already there 
and anticipating the increased volume of more investment as we 
get even close to half of the 10,000 visas that are available 
in this category.
    But, you know, imagine running an agency where you are 
running up against the possible sudden end of the program, 
essentially, but you are trying to staff up in a big way to 
handle the volume that you hope will come. I mean, that has got 
to feel like a conflicting situation, and you would imagine 
that it is going to hold somebody back.
    Now, I am not saying that they are holding back, and I know 
that they are trying to staff up because I am sure they believe 
and hope that the program will be reauthorized for the benefit 
of the Nation. But I think, you know, the concern is there. And 
is that really where they are going to be able to invest their 
time and resources in trying to clear up the rules of this 
program so that everybody knows whether they can qualify or not 
and which kinds of projects are going to qualify and so forth? 
We need that continually.
    Chairman Leahy. And, Mr. Stenger, we in Vermont--again, a 
small State, but we have the State government involved with the 
Vermont Regional Center. Does that add benefits to Vermont's 
program?
    Mr. Stenger. The fact that the State of Vermont is the 
regional center administrator, and actually I guess you would 
call it the owner of the regional center, has been a tremendous 
benefit. As you know, in Vermont we have local, regional, and 
State regulations both at the planning stage as well as 
permitting. We have worked hand in hand with the State. Our 
Governor has been very supportive. It is a win for us to be in 
partnership with the State of Vermont as the regional center. 
Our investors recognize the stability and the continuity of the 
State's involvement. They appreciate our continuity and our 
stability.
    So for us, the Vermont Regional Center has been a wonderful 
partnership, and we look forward to that continuing.
    Chairman Leahy. And we are small enough that people could 
be reached easily. I think everybody finds that surprising when 
they find that certainly past governors, and I believe the 
current Governor, myself, and others have listed home phone 
numbers.
    Mr. Stenger. We are a small State, a small community, and 
we know how to get things done.
    Chairman Leahy. Yes. Mr. North, I made a few comments about 
your comments. Is there anything you would like to add, out of 
fairness to you?
    Mr. North. Thank you, sir. I would like to make simply one 
point. We have apparently a tremendous success story. We have 
not heard about the profits that the investors received on this 
thing yet, but we apparently have a successful operation.
    I do not think that the United States Senate should operate 
on anecdotes, and I think that looking at this thing from a 
greater distance, perhaps without knowledge of ski resorts--I 
am a little old to ski--I do not think that we should rely too 
much on one glorious anecdote, and I will leave it at that.
    Chairman Leahy. Well, I appreciate that, and I appreciate 
your implication of that, that we Senators only rely on 
anecdotes. We study a great deal more than that. I mean, I 
realize I may live on a dirt road in a small town, I am just a 
small-town lawyer, but I actually read other things and I 
actually have even traveled outside of Washington to other 
parts of the country, and I actually have the ability to learn. 
I do not work for a think tank, but I actually do have a fair 
amount of information that comes through to me every day.
    Senator Grassley.
    Senator Grassley. Mr. Chairman, I live on a dirt road, too.
    [Laughter.]
    Senator Grassley. And I have traveled some with you.
    I have just two questions, and if I could have the 
Chairman's attention on the first one, I think that this--this 
is going to go to Mr. Divine mostly, but I think that this is 
something that you see as maybe an issue that ought to be dealt 
with because I think you got something on this in your draft 
legislation. You do not have to listen to everything. I just 
wanted to make----
    Chairman Leahy. I will listen to it.
    Senator Grassley. Okay. Reuters recently reported on how 
cash-hungry American businesses are working abroad to promote 
the EB-5 Regional Center Program. Many of these EB-5 promoters 
are mischaracterizing the program, luring investors here and 
robbing them of the American dream. And, admittedly, if you get 
something out of Reuters, I suppose it has got to be considered 
somewhat anecdotal, too. But China has reportedly put 
restrictions on these promoters. And when asked by Reuters, 
both the USCIS and the Securities and Exchange Commission were 
unaware of any marketing abuses. So, rhetorically, I want to 
ask but do not expect an answer from any of you on this point: 
Is it possible that everyone outside the Beltway is aware of 
these promoters and yet our Government sits idly by?
    So, Mr. Divine, since you worked at USCIS, can you tell us 
if these promoters were on the radar screen at the agency?
    Mr. Divine. Well, I will confess that when I was there, I 
was not really much aware of, you know, what was going on in 
promoting these projects in China or in any other place back in 
2006, when I left. But since then, I have become very aware of 
how the whole thing works, and I want to make clear, first of 
all, that these projects for pooled investments where people 
are investing passively, they are an offering of a security, 
and they are covered by the U.S. securities laws. And the 
parties who put these offerings together take great pains to 
describe--and, you know, people like me help them articulate 
for the investor, hey, these are the risks associated with 
investing in this thing.
    There is a whole section of the placement memorandum that 
is given to each one of these people that describes all the 
risks: You could lose all your money from this; you could lose 
all your money from that. And it goes on pages and pages. Those 
things are given to each investor. They have to sign off that 
they have seen all those things, and it is very carefully 
managed.
    Now, what gets said on the ground in another country about 
what those documents are, is it possible that there are some 
promoters in China or elsewhere who are mischaracterizing in 
Chinese what these documents say? It is possible. If that did 
happen, then that would be a violation of the U.S. securities 
laws, and it also would be a violation of Chinese securities 
laws, by the way. And to my understanding, China has a fairly 
significant regulatory scheme for these immigration brokers. 
They are kind of a combination of immigration agent and 
securities broker. And they have to, in fact, each put up a 
million dollars to get a license from China for each city in 
which they are operating. This is my understanding.
    They are heavily regulated, and the Chinese Government does 
not suffer misrepresentation to Chinese investors well, and my 
understanding is they actually implemented the death penalty 
for somebody in China who was promoting fraudulent investments 
to people. So it is pretty serious there.
    Is it possible that there could be fraud in the offering of 
securities? Sure. This is human behavior, and it is the same as 
it always ever has been. But there are securities laws and the 
SEC who are there to address these issues, and USCIS, as I 
understand it, is working more closely with the SEC and 
coordinating with them on these issues.
    Senator Grassley. I would just ask, following on in the 
same question, your experience on whether anything more needs 
to be done or if you even see it as a problem. Mr. Stenger 
first and then Mr. North, and then I will go on to my last 
question.
    Mr. Stenger. Senator, there are different markets in the 
world that are involved in this program. As I mentioned, we 
have welcomed investors from 56 countries. China has an 
enormous population with an enormous interest in this program.
    As a policy, with our particular program, we meet every 
investor that we can, and by doing so we get any middleman, if 
you call it, out of the way. I want them to see the project. I 
want them to come and see what we are doing, understand it 
themselves on the ground. And when we have done that, it has 
been incredibly successful for us and for them. And any 
regional center that is in the marketplace--and there are some 
200 around the country. If they take that approach, they will 
avoid problems such as being mentioned.
    Senator Grassley. Okay. Mr. North, if you see it as a 
problem, give me your answer.
    Mr. North. I do see it as a problem, and it is aggravated 
by the fact that the agency, the USCIS, is currently trying to 
streamline its review of these proposals. They have set up a 
new command structure. They are bringing in new staff hopefully 
that will say yes a little more often than the staff that is 
there now.
    There is a tremendous flow of questionable documentation. 
USCIS picks up some of it, as you see in the table in my 
report. And a lot of it does not get picked up until later, and 
it shows up in the Administrative Appeals Office decisions.
    There have been difficulties--and I would just tick these 
off very quickly--with a plan to use Iranian funds to revive 
the old Watergate Hotel here in town; a scheme so lacking in 
integrity in the Mojave Desert that the EB-5 Center itself was 
terminated; similarly, one in El Monte, California, where it 
turns out that some of the developers had some pretty 
questionable backgrounds. There is an attempt----
    Senator Grassley. You can go on, but I want to----
    Mr. North. I will not.
    Senator Grassley. I think you are talking about my last 
question.
    Mr. North. All right.
    Senator Grassley. No, go ahead. I just kind of want you at 
that point, as long as you are using it to answer the other 
question. Mostly explain what went wrong at these centers, 
Mojave and the real estate development in El Monte.
    Mr. North. Generally, it turned out that not necessarily 
the regional center people but the developers--and these are 
two different sets of people. The developers in those two 
places were snake oil salesmen, and USCIS sort of found out in 
this case, but there are other snake oil salesmen out there 
that have not been detected, and I just think there ought to be 
more, not fewer, checks and balances.
    Senator Grassley. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Fortunately, that is the only 
Government program where people come in like that. We certainly 
have nothing of that sort from anyone involved with our 
contractors in Iraq.
    I notice that Senator Sessions and Senator Cornyn are here. 
Before I yield to you, I ask unanimous consent to place a 
statement from Senator Schumer in the record. Without 
objection, that will be done.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Chairman Leahy. I will also submit for the record a number 
of letters from the EB-5 Immigrant Investor Program, including 
letters from Marriott International and the Real Estate 
Roundtable.
    [The letters appear as submissions for the record.]
    Chairman Leahy. I might just read a couple sentences from 
Thomas Berthel from Marion, Iowa, from Berthel Fisher and 
Company. He says, ``Rarely do we find a program that does not 
rely on taxpayer funding or bank funding that is available at 
reasonable rates of return. It is our opinion it may be poor 
fiscal policy to cut off such a funding stream at this critical 
time.'' And that I will also place in the record.
    Senator Grassley. And I will say for those people, they are 
reputable people as far as I know.
    Chairman Leahy. Thank you very much.
    [The letter appears as a submission for the record.]
    Chairman Leahy. And I will put letters from the regional 
centers from 17 States who have written to their Senators and 
Representatives and asked them to go forward.
    [The letters appear as submissions for the record.]
    Chairman Leahy. We will go to Senator Sessions, who has 
worked with me on this subject for years, and then Senator 
Cornyn.
    Senator Sessions. Thank you, Mr. Chairman. You and I talked 
about this before, and I think we share a common understanding 
that the EB-5 program can be good for America. It can 
strengthen our country and direct a number of immigrants to our 
country that have a real chance of creating jobs and growth in 
the economy. So I think it has potential.
    My fundamental view of the immigration situation of our 
country is that more people want to come here than we can 
accept. In fact, we have billions of people in the world who, 
economically and health-wise, would be better if they could 
live in the United States.
    Canada has gone through a series of debates over many 
years, and they concluded that a good immigration policy would 
serve the interest of the people of Canada. It is Canada's 
policy and it is Canada's interest that they are seeking to 
advance, and they have utilized investment from foreigners as 
part of their immigration policy. And, Mr. North, I think maybe 
Australia has, and I will ask you in a second about how they do 
it.
    But I guess I just would say that this has got real 
potential, Mr. Chairman. Thank you for your personal leadership 
on it. I do think we are at a point where we probably are ready 
to make it permanent, and if so, we ought to take the 
opportunity to review it very carefully because, if not 
properly drafted, it can be an abused program. I do not think 
there is any doubt of that. So that is just what I would say.
    I am sincere in saying EB-5, I believe, should be a 
significant part of our immigration system. Of the hundreds of 
thousands that come to our country legally every year, this 
program should represent a part of that because in most 
instances, they will be investors with wealth to bring, will be 
job creators, will not drain the treasury but actually making 
money and increasing the U.S. treasury. And that is what a 
country with common sense should seek in its immigration 
policy.
    Mr. North, would you share about Australia or Canada, if 
you would, and how they feel about it and how you evaluate its 
success or failure in those countries?
    Mr. North. I will comment on Australia because I know 
something about that, and less in Canada. Australia is 
interested in entrepreneurs and people who are going to put 
together businesses as opposed to passive investment. Our 
program is largely one of passive investment. Australia also is 
more demanding about age. They want you to be under 45 under 
one set of circumstances, under 55 in another. They have a 
strong preference for managers, and they also ask for more 
money than we do. This is American dollars, not Australian 
dollars. They want $778,000 for one class and $1.5 million for 
another class. So they are getting more money from their 
people, and since theirs is a smaller economy than ours, the 
same amount of money goes a lot further. And so they are 
getting a lot--they got more bang for their buck than we do, 
and I think that what Australia is doing is typical of a bunch 
of other countries, that they require more money than the 
United States does, and if we are going to be doing this, I 
think we should be doing it at least at the $1 million level.
    Senator Sessions. I think that is something we should 
consider. And I believe the age factor is very real. Canada 
emphasizes age, that it is healthier for Canada, they have 
concluded--rightly, I believe--that younger people are able to 
contribute more to society normally than an elderly person 
would. As I reach my Federal health care Medicare age, that is 
something that has become personally real to me.
    So, Mr. Chairman, thank you for your leadership. I will not 
take any more time. I do think that we ought to think it 
through, look toward the implementation of a permanent policy 
that serves the interests of the United States, and the age, 
the amount of money, the quality and nature of the investment, 
maybe we should look at it. We are in a situation where a lot 
of people would like to come, so we can try to make the 
legislation work in a way that it serves our interest.
    Thank you.
    Chairman Leahy. I have worked with the Senator, as he 
knows, on a lot of different issues in the past, but when we 
join hands, we usually get things passed. So I will work with 
him on that.
    Senator Cornyn, we were talking about Texas in here 
earlier--in a very positive way, I assure you. I am delighted 
to have you here. Go ahead.
    Senator Cornyn. Well, Mr. Chairman, like so many of us, we 
have dueling obligations. I was over at the Senate Finance 
Committee, so I am glad I was able to come over here and say a 
few words.
    The first thing I would like to do is to ask unanimous 
consent to have some letters made part of the record. I have 
letters from the cities of Houston, Dallas, and Amarillo and 
from business leaders around the State all urging the 
reauthorization of the EB-5 Regional Center Program.
    Chairman Leahy. They will be made part of the record.
    [The letters appear as submissions for the record.]
    Senator Cornyn. And we also have with us Dan Healy today 
from Civitas Capital Management of Dallas. He has offered some 
written remarks that I would like to be made part of the 
record. He has been working closely with the city of Dallas to 
develop their regional center.
    Chairman Leahy. Without objection, it will be part of the 
record.
    [The information appears as a submission for the record.]
    Senator Cornyn. I will not detain the witnesses much 
longer. I did see, Mr. Divine, after Mr. North commented, you 
apparently had something you wanted to add. I will give you a 
chance to do that.
    Mr. Divine. Well, I wanted to add a perspective on the 
other countries' program. In particular, it is my 
understanding--and I do not claim to be an expert on the 
immigration law of every other country. But it is my 
understanding that Australia has two programs that are sort of 
relevant to this. One is an entrepreneur program that 
specifically requires the person to create two jobs over a 
period of a year, and then they can keep the visa longer if 
they keep the jobs in place. But they also have a raw investor 
visa which only requires, just as is the case in Canada and in 
the U.K., a money investment that is essentially equivalent to 
buying treasury bills, keeping the money in place for 3, 5 
years. You get a green card. There is no risk of the money. 
There is no job creation component whatsoever. And the Canadian 
amount has been $800,000 and still is operative in Montreal in 
that regard. And they have filled their program with this. 
Canada has beaten the United States in attracting foreign 
investors with their program because of the lack of risk and 
job creation requirements.
    But, okay, that is the program here that is requiring job 
creation. That is part of the deal. You cannot keep your green 
card if you cannot show that you created ten American jobs for 
your money. No other country does that.
    Senator Cornyn. Well, thank you Mr. Divine.
    Mr. Chairman, I would just say that I look forward to 
working with you on this, and I agree with Senator Sessions, we 
ought to--we naturalize 1 million people as new American 
citizens each year in America. We are a very welcoming country 
when it comes to legal immigration. That is not to say our 
system is perfect, because it is far from it. We need to do a 
lot to make it better. But I do agree with Senator Sessions' 
orientation that says that we ought to look at what is in the 
best interests of our country and our economy, because we have 
seen countries like Japan, Russia, and others lose population 
because people are having fewer children and in some instances 
dying much younger--in Russia, for example--and it has a 
dramatically negative impact on the economy and one that 
immigration, sensible immigration, can help improve.
    But the two areas that I really think we need to look at 
closely, too--and I realize this is a multifaceted issue, as 
the Chairman knows--is obviously making sure that we stop the 
problem when it comes to unauthorized entry into the country as 
much as we possibly can by providing more security at the 
borders. The combination of increased enforcement at the 
borders and our slower economic, and higher growth rate, for 
example, of the economy in Mexico have meant that we have had 
fewer people coming across our southern border. But we need to 
deal with that as a confidence-building measure for the 
American people because they frankly do not trust the Federal 
Government right now in this area. We need to show that we 
deserve their trust.
    The other areas I mentioned were just on the e-verify 
program that I know Chairman Smith on the House Judiciary 
Committee is working on, working to try to get input from a 
broad array of stakeholders to make sure it is done the right 
way, but to make sure that we actually are able to permit 
employers to verify who can legally work here in the United 
States while permitting, in my view guest worker programs and 
others to provide for temporary needs or less than 
naturalization.
    Finally, I would just say the one area that I am really 
most concerned about that we talk very little about is the US-
VISIT program, people who come into the country on a visa and 
simply overstay, and they melt into the American landscape, and 
it is 40 percent, by some accounts, of our illegal immigration, 
much higher than the number of people who come across the 
southwestern border, and it is something we have to get a 
handle on.
    But I applaud your concentration on this particular aspect 
of the program and look forward to working with you on this and 
other aspects of our broken immigration system.
    Thank you.
    Chairman Leahy. I appreciate that. And as the Senator 
knows, I was one who supported former President George W. 
Bush's call for a comprehensive immigration bill, which would 
still be my preference. But if we are not going to get to a 
comprehensive one, there are a number of these areas. Chairman 
Smith and I have talked about e-verify and others. Certainly 
EB-5 is one that we ought to be able to work closely together 
on. While we will not rely just on anecdotes, I look at how 
well it has worked in my State. But I see letters from Dallas 
and other areas how well it has worked there.
    If you have people who want to come into the country and 
create jobs, especially when most of the jobs go to Americans 
who are already here who could use the jobs, then we ought to 
be supportive.
    I also think that we cannot lurch from a year-by-year 
reauthorization. We have got to fish or cut bait on this thing 
and say if we are going to do it, let us do it permanently. Let 
us find out if there are problems, let us correct the problems, 
and let us make a piece of legislation that can have bipartisan 
support, bicameral support, and that will allow investments to 
continue.
    Senator Cornyn. Mr. Chairman, if you will permit me, I 
would just say, just to make sure we keep at the top of our 
list, too, or toward the top the H-1B visa issue, highly 
skilled people who come to our colleges and universities and 
get degrees, subsidized in part by the American taxpayer, and 
who then we do not permit to stay here even though we need some 
of those skills.
    Chairman Leahy. I was speaking on that just the other day, 
and it just makes no sense, especially in these universities 
and colleges, whether private or public, we are subsidizing one 
way or the other. Even the private ones, they still get tax 
benefits elsewhere. And it makes no sense to say, ``Come on 
over here, get these advanced degrees, and, oh, by the way, you 
cannot stay, go back to your own country and create jobs there 
and compete with us.'' I would kind of like to keep them here.
    Thank you. We stand in recess.
    [Whereupon, at 11:23 a.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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