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Top Investor Question – How do I trust you?

September 1st, 2023 Greg Sheehan
Editorial by Greg Sheehan, Director of the EB-5 Investor Platform and USCIS Compliance

 

Former USCIS Adjudicator at the Immigrant Investor Program Office

 

This is by far, the most important question an investor can ask. It covers more than the project, economics, or immigration. It comes down to the protection of your future.

Every investor looking at EB-5 is considering one of the biggest decisions of their life. And except for rare circumstances, the vast majority are looking at this process for the very first time.

Those who have joined us with prior EB-5 experience either have friends or family who invested before and aim to join their direction, or unfortunately there are others  who were burned by products that relied on agent networks, those who did not understand the Matter of Ho requirements of a Direct Investment, others who got burned by in and out broker/dealer strategies, or those who failed to understand the economic strength of the project and principals involved – sometimes caused by a carefully hidden inability to communicate directly with the actual project developer.

This post will provide a deep dive into the most important aspect of the decision making process; trust. As you know by now, every Regional Center will give you a view of their hopes and dreams, and will invite you to be a part of it.

To introduce my analysis, I will start with a legal citation that is commonly used by USCIS Adjudicators at the Immigrant Investor Program Office working on forms I-526, I-829 and Regional Center filings. The context here is where a lawyer makes an assertion to cover a gap in the filing. If there is no evidence to support the statement, then the benefit request could indeed fail. USCIS will present an opportunity for the Petitioner to provide additional evidence and cite this quote in the Request for Evidence or Notice of Intent to Deny.

“The assertions of counsel do not constitute evidence.”

Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988)

In the context of this post, broad statements by a Regional Center made to solicit your investment need to be supported with evidence. By nature, evidence needs to be relevant and helpful to the understanding of your true outcome.

Areas of review

1.     Evaluate the proximity of the Regional Center promoters to the outcome of the project.

An integrated Regional Center who fundraises for their own projects is much different from a typical broker/dealer Regional Center. Those principals are outside of the football stadium selling tickets to the game. When the doors close, they find the next game. It’s a perfectly fine business model; for example, Ticketmaster is a valuable enterprise.

Not only is our future directly related to the outcomes of our projects, we also offer a unique position for investors who want to join our real estate platform for the long-term. This is evidence that the entire partnership will be in the seats they bought, until the end of the game. This proximity is critical to developing your trust in your investment partner.

2.     Does the Regional Center have the ability to perform actual oversight in compliance with the EB-5 program?

Every Regional Center is charged with oversight responsibility and when they apply for official USCIS Designation they must demonstrate whether or not they will oversee their projects. Typically this is done by describing in broad terms how they are able to do this and their evidenciary support is “bios” of their principals and partners. And this makes sense because at any level, to be involved with fundraising and development you have to use a high level of talented, educated, and experienced resources.

That alone seems fine for an investor to contemplate, but what you may not know is whether or not those actors have been involved with bad partners in the past. You wouldn’t think to look this up if you’re looking at EB-5 for the first time. You wouldn’t have access the resources you need either; enforcement databases, past project failure data, internal correspondence is all absent from public domain. Though you could use open source data to find UCC filings, bankruptcy actions and other public records to help you look outside the scope of the current partnership.

If you do discover derogatory information about a Regional Center principal using open sources like Google, you should give them the chance to address your concerns since we know the internet is not always accurate in facts or context.

3.     Has the Regional Center ever had to walk away from a project as part of their oversight requirements?

This evidence will always be directly unavailable when it comes to investment marketing. Some Regional Centers only feature successful projects. Others will have domestic projects on their site while also being involved in projects specific to overseas marketing because of Federal laws and regulations.

Of course, you can ask them, but as mentioned above, assertions are not considered evidence. You could follow up with a direct call to their partners who manage or develop the projects, ask several EB-5 attorneys whether or not the Regional Center is transparent, or if you are willing to wait, ask them via email with a copy to the SEC and to USCIS enforcement branches. The power of the Federal Government is on your side, but investors don’t immediately think to use it. But you can generate great evidence with this method.

Investors who have joined us after being burned by other Regional Centers have experiences that are in line with what I saw working at IPO, they tried EB-5, thinking they knew what to ask, and they trusted the wrong people. They simply didn’t know what to look for, or how to find it.

4.     As part of the oversight responsibility of the Regional Center, do the Principals have the specific tools and experience to take action in the event of economic surprises?

This is where vertical integration sets us apart from brokers. Our direct involvement in the development and proximity to the outcome of the project allows us to screen, in real time, development progress and market headwinds, whether its supply side delays, public health shutdowns or increased interest rates, we are the pilot who can fly the plane in bad weather. We have been able to correct issues before they turn in to problems, and we even have the ability to step in front of a foreclose in the very brief window afforded – broker/dealers aren’t built that way. They wouldn’t know where to begin, especially if they are focused on selling tickets to the next game and traveling internationally.

Whether we are building our own product or lending to a developing partner our proximity to the outcome involves ownership, full, real time involvement with the project in a way that sales agents can’t perform, and the ability to take actions than most Regional Centers are not educated to provide.

Another way to picture this is, when a Regional Center is introducing you to a development project, oversight is one thing, but what is their actual development experience? Do they have 60 years of Real Estate Development history across every economic climate? Have they actually written in EB-5 protections in negotiations with blue chip REIT’s, or do they just take a deal that seems reasonably safe?

5.     Are negative articles evidence of a bad project?

As you see in any market, bold statements without evidence are commonplace. While this becomes tricky when soliciting an investment because of securities regulations, anybody shopping around should be comfortable with comparative analysis. Every customer should ask their prospective partner about negative claims, and that gives us a chance to strengthen our process and present evidence in response.

It comes back to the point of regulatory review, assertions are not considered evidence. You might hear of a bank failing, or gang activity in another part of town, or even previous unrelated deals that have fallen through. Even if all these marketing items have the word San Francisco in the title, none of these assertions are relevant beyond that. Speculation from there to raise doubts are actually one of our best marketing tools, free of charge. As a few of our investors have told us;

“It promotes inversely as it brings us right to you, and it looks like an inferiority complex…wondering why they don’t promote their own quality.”

As in any industry, free advertising makes market leaders stronger.

6.     Is there economic support for rentals in your locations? San Francisco is facing troubling downturns in commercial real estate.

Supply and demand data like occupancy rates and rental rates are an aggregate tool for objective data capture, which means that the economic health of an area is put in to one metric. Factors like crime, climate, taxes, job opportunities, education, health care, lifestyle and leisure are compacted into one output. It is not the only measure for an investor to consider of course but to verify you can call the other existing apartment comparatives in our neighborhood in Oakland and find out for yourself; what is your occupancy rate? What is the rental rate for a one bedroom? Do you collect data from your tenants about their experience? What is your turnover rate?

We know that Oakland’s housing needs are well-documented. We also know that increased housing and job creation tend to lower crime and lead to increased opportunities for tax-based community enhancements in departments of education and law enforcement.

Because the San Francisco Bay Area remains the hub of the tech sector, advancements in automation, AI, VR, bioscience, top employees remain where the opportunities are. As we see increased back to work policies, our investors are telling us that the people who moved to Texas or the sunbelt are being brought back. This long-term tailwind promotes confidence in real estate investments in this location more than short-term unrelated factors.

Oakland features several headquarters locations including PG&E, which recently bought 910,000 square feet of office space, 7 minutes away from 1900 Broadway. Block, formerly Square headquarters is across the street from us and the towers of Kaiser Permanente are immediate neighbors.

Most importantly, when it comes to rentals, location is everything. 1900 Broadway sits directly on a metro station and the 19th Street location is completely underground. There are no overpasses nearby, no bridges or covered locations. Residents of this building are 7 steps away from public transit to the University of California – Berkeley, Salesforce tower and other San Francisco points of business, and to the south the Bart extends towards Silicon Valley and both International Airports.

As a magnet for diverse economic opportunity you can see why the occupancy rate nearby is around 95% for buildings who have completed their lease-up period.

7.     What is the role of the partnerships in a financing model?

When considering involvement in a large-scale project you want to know who the Regional Center financial and operational partners are as a way to develop confidence.

As evidence of our partnerships, here’s a snapshot of a few of our current partners who bring incisive ability to evaluate a transaction. Stock yields are based on the date of publication.

 

–       Bank OZK: Publicly traded bank (up 5% in 2023) with a market cap of 5B. They specialize in multi-family asset lending, and hold our Senior Loan. 93% of their holdings are institutional investors.

–       Essex Property Trust: Publicly traded REIT (up 12.40% in 2023) with a market cap of 15B. They are part of our General Partnership. Their completion guarantee and accountability to shareholders help deliver EB-5 investor confidence.

–       Jones Lang LaSalle: Publicly Traded global real estate services company (up 8.14% in 2023). Their property management arm is our leasing administrator.

–       Riaz Capital: Multi-generational Real Estate developer focused on Risk Management, Efficient Delivery and State of the Art development in areas of urgent housing needs.

8.     Customer service as evidence of trustworthiness.

This is more of a subjective question. You are choosing a long term partner so your initial experience is relevant to your evaluation. When you speak to a Regional Center to learn about their opportunity, are you speaking with a subject matter expert or is someone reading a power point?

Are you able to speak with other investors about their experience to develop confidence? Can you access testimonial videos from investors who have been repaid?

At Behring we have an internal stockpile of video feedback from over 40 investors, we were chosen by a group of 30+ tech investors in the Bay Area, and we have an extensive list of investors who would be available for conversations with late-stage prospects.

Our customer service process is based on a combination of fast and deeply informative replies, whether its about EB-5, capital markets, securities offerings, SEC regulations, real estate development and lending or fund administration, auditing and compliance. From beginning to end and beyond, your investment partnership choice depends on the feeling that you will not be left without direction and guidance. Evidence of this is available as part of our initiative to contact each and every investor in our platform to assess our strengths and weaknesses, even after redemption.

9.     Subject matter expertise.

I mentioned my USCIS experience above which relates directly to EB-5 policy. Our Managing Partner, Peter Bibler, was a lawyer and educator in China and was involved in the largest real estate development project in US history in Manhattan. That project raised one Billion dollars in EB-5 financing alone and I approved many of those petitions when I was at IPO.

After that work he began consulting with international partners and developed networks in other asian EB-5 markets. Here he is able to bring insights that local Regional Center principals just don’t have. They tend to be lawyers or MBAs with no international or development experience. They don’t tell you that because they don’t know whether or not that matters. We know it does and Peter is an example why. He’s our in house counsel and internal resource on financing, structuring offerings, sales, and when you go visit the site and look at the units and views in person, you’ll learn more from him than any other EB-5 resource.

Except for maybe our CEO, Colin Behring. Colin’s family has been involved in real estate development for 60 years and if the name sounds familiar it could be that Ken Behring owned the Seattle Seahawks and sold them to the Paul Allen group. Colin worked in China, developing real estate and met Peter there. During his time there, foreign investors would approach him about EB-5 to develop confidence. He saw enough trash being offered to foreigners that he decided he would create his own Regional Center in the US, and we’ve been operating since 2013.

10.  Is the Behring-USCIS relationship strong?

Public record searches are the simple approach here because you can read the actual text of the favorable decisions which have staged many elements of EB-5 as we know it today. The USCIS website refers to Regional Center requirements that were part of the Behring Settlement. This action took place when I was in the office, and my team was asking all Regional Centers to re-file. Behring’s litigation changed the course of that policy knowing it could take years to get re-started. This decision was joined with industry partners, allowing Regional Centers to continue as long as they could certify that they would proceed in compliance with the Reform and Integrity Act.

Our previous lawsuits were also investor friendly and resulted in actions favorable to the industry as a whole, such as the redaction of the 900k minimum investment and a provision of certainty that in the event of a future program lapse, adjudications would need to continue.

Aside from our litigation success we have a 100% rate on project approvals, I-526 approvals I-829 approvals and timely, full payouts. This does not include data from investors who chose not to pursue EB-5 after filing, based on personal reasons or victories like E1 approval or marriage to a US Citizen.

TL:DR We encourage you to compare us to the market, we encourage you to bring challenge questions. Whether we can help you develop trust and confidence is both subjective and data based, and that’s our focus. Because at the end of the day, assertions made without evidentiary support are worthless.

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