不管怎样，大都市地区的开发商都处在EB-5争议的风口浪尖上。今天，EB5Sir就陪朋友们来看一篇，纽约地产媒体The Real Deal的一篇文章，关于纽约房地产商在EB-5延期之后的报道，在报道中我们能看到TEA争议以及祖父条款和就业调整等法案焦点，可能对于EB-5项目的影响。本文由业内朋友Yanan义务翻译，特此感谢。
“目前可能一尘不变，但是毫无疑问，改变很快就会到来。”Kate Kalmyk如是说，她是Greenberg Traurig的一名律师。该律所为使用EB-5项目进行融资的房地产开发商提供法律咨询，它们的客户包括瑞联集团 （the Related Companies）。
佛蒙特州的民主党参议员Pat Leahy 和爱荷华州的共和党参议员Charles Grassley 提议收紧EB-5计划的规则，以期让更多的EB-5资金投入农村地区，而不是像现在这样，聚集在纽约这样的大城市。
该计划自1990年建立以来便规定，只要投资者将资金投入位于“TEA – 目标就业区域”内的项目，投资的数额便只需$500,000。TEA被定义为失业率是全国平均失业率的1.5倍的区域。
今年呈给众议院的另外两项法案，分别来自加州民主党议员Zoe Lofgren和科罗拉多州民主党议员Jared Polis。这两份法案则支持保留各州合并相邻人口普查区块的权力。虽然目前仍未有法案通过委员会，但是许多人相信Leahy-Grassley的措施更可能得以最终推行。
Eric Orenstein目前供职于Rosenberg and Estis律所，该律所的客户主要是那些充当着开发商和投资者中间人的区域中心。Eric表示希望EB-5的市场需求够大，不会太受价格影响。他说，投资底额提高，达到融资总额所需要的投资人数也更少。“（投资底额上涨）并不会有太大的影响。” Orenstein 如是说。
Kalmykov说，相较于只能使用单一人口普查区块 (census tract) 这一解决办法，许多纽约开发商更倾向于建立一个能将工人的居住地考虑在内的标准。例如，在西切尔西区哈德逊开发项目工作的工人可能居住在纽约东部像布鲁克林一样贫穷的地方。这样，EB-5法律的精神 – 为那些需要的人创造工作，就能得以实现。
纽约房地产协会密切关注此事进展，他们表示支持重新授权EB-5项目、抵制欺诈。John Banks, 纽约房地产协会的主席在一次声明中表示到，“反对那些不利于城市地区的改变，我们也在尽力确保任何项目改变都是步调合理的”。
另一些Leahy and Grassley新法案提出的、针对纽约房地产产业的改变则没有那么大的争议。例如，将对创造就业机会的要求变得更加严格。
目前，10个工作可以是任何形式和类型。实际上，据Gary Friedland说，EB-5项目在特定开发阶段的花销能够创造的工作数量是由一个通用的公式计算出来的。Gary Friedland是纽约大学的讲师，他对EB-5项目有广泛的研究。
参议院提案会有更多要求。一个项目可能只能创造9个非直接工作 – 例如，在新建公寓楼商户底层的一间商店。另外一份工作则需要是直接工作，它可以是房东聘用的一位安保人员、或更常见的是，一名建筑工人。在最近几年，法律条款略微放宽，长期的建筑工作也逐渐可被记为直接工作。但如果项目所需的建筑时间少于两年，建筑类工作则不被计算在直接工作之内。
打个比方，翠贝卡101是一栋63层、130个房间的大厦。它位处于101 Murray 街，由Fisher Brothers and Witkoff 集团建造。据Gary Friedland和Jeanne Calderon（纽约大学教授）一篇名为“EB-5融资指南: 商业房地产项目的又一融资工具”的报告称，该大厦开发成本为七亿三千五百万美金，其中有一亿七千五百万来源于EB-5 项目。
其他在建的、主要通过EB-5融资的项目包括Eos。Eos这个商用大厦共有375个房间，由the Durst Organization开发，位于美利坚大道855号，靠近位于西31街的先驱广场。Gary Friedland在报告中称，该项目开发资金共计四亿两千三百万美金，其中八千万美金来自于EB-5资金。
该报告还提到的项目有Bryant, 一个由HFZ Capital Group 开发的33层公寓酒店，位于中城西40街16号，共有57间公寓、230间酒店房间；在它两亿五千三百万的开发资金中，共有五千三百万来自由EB-5计划。Charles, 位于上东区第一大道1355号的一座28层酒店，由Bluerock Real Estate和the Victor Group出资打造，一亿五千7百万美金的开发资金中有两千两百万美元来自于EB-5。
截止目前，EB-5资金最大的受益者是瑞联集团（the Related Companies），它的哈德逊园区混合型项目有十二亿美金来自于EB-5项目。据Real Deal 六月份的报告，放眼全局，瑞联集团控制了全国三分之一的EB-5市场。
Leahy – Grassley法案中提到的其他改变则没那么多异议，例如它提议移民局这个监管机构会对整个过程有更多的控制，更少依赖自我报告，更多相信证券交易委员会提交的报告。“这将阻止系统中的人为操作。”
Kicking the can on EB-5
Congress holds off on tightening rules for controversial visa program
October 01, 2015
By C. J. Hughes
New York developers who rely on the widely popular EB-5 visa program to fund their projects are likely breathing a collective sigh of relief as October kicks off.
Although a key provision of the federal program expired at the end of last month, Congress put on hold tough new standards that could make it more difficult to qualify for overseas capital through the program, which trades visas for investments that create jobs.
Federal lawmakers instead decided to kick the can down the road and revisit the legislation in the next few months, but keep the program intact in the meantime.
Few analysts expect the status quo to be preserved for long.
“It may be business as usual for now, but changes are definitely coming down the pike,” said Kate Kalmykov, an attorney with Greenberg Traurig who represents developers who use the EB-5 program, including the Related Companies.
New York City could lose out
One possible change could be in where foreign investment is directed.
In a bid to push more EB-5 investments toward rural areas and away from cities like New York where they have clustered recently, Democratic Sen. Pat Leahy of Vermont and Republican Sen. Charles Grassley of Iowa proposed tightening the rules that govern the EB-5 program.
Under current law, investors in the program are required to create 10 jobs within two years of applying for a visa, in exchange for a loan that is paid back at a low interest rate. Most investors, who are predominantly from China, are less concerned about their payout on the loan, however, than they are about getting visas and eventually permanent resident status, more commonly called a green card.
Since the program began in 1990, the investment required has been $500,000, if the money is spent on a project that’s located in a neighborhood called a “Targeted Employment Area,” which has an unemployment rate that is 150 percent of the national average.
But state officials often stretch the boundaries of those areas to lump in impoverished communities with wealthy ones, effectively boosting the unemployment rate. To make Related Company’s Hudson Yards project eligible for the program, for example, state officials cobbled together census tracts along the Hudson River, from West Chelsea north to Harlem, which pushed the average unemployment in the new district higher.
In fact, according to a recent report in the Wall Street Journal, at least 80 percent of EB-5 money is flowing to projects that wouldn’t qualify without gerrymandering districts.
The Leahy-Grassley bill would do away with that practice, and require just a single census tract be used to identify a targeted employment area.
That would be a huge blow to many New York developers, analysts said, and to projects they aim to build in affluent neighborhoods like Tribeca, West Chelsea and the Upper East Side.
Two other bills offered in the House this year, from Rep. Zoe Lofgren of California and Rep. Jared Polis of Colorado, both Democrats, would preserve the status quo and allow contiguous tracts to be combined, as states see fit. None of the bills have yet moved through committee, but many observers think the Leahy-Grassley measure is more likely to see action.
For projects that are in targeted employment areas, the Leahy-Grassley bill would also raise the minimum investment amount to $800,000, arguably to keep up with inflation, since the dollar amounts have not changed in the decades since the EB-5 law was created.
But what really makes some New York developers anxious is what could happen with projects in areas with lower unemployment rates that can no longer be gerrymandered. Right now, the investment threshold in those locations is $1 million. That would climb 20 percent, to $1.2 million, under the Leahy-Grassley proposal.
In other words, the price of investing in many New York real estate projects in order to obtain a visa could soar to $1.2 million from $500,000, a huge swing that is sure to make some foreign investors rethink their visa needs.
Eric Orenstein, an attorney with the firm Rosenberg and Estis who represents regional centers, which act as intermediaries between developers and investors, said he’s hopeful that there will still be enough demand out there that any change in the price tag won’t hurt business. He noted that higher thresholds also mean it would require fewer investors to hit the same dollar amounts. “It won’t really change the equation,” Orenstein said.
Grandfathering in applicants
What does worry Orenstein is the timing of any changes to the law, he said. Among his concerns: Will an immigrant investor who has applied for a visa and spent months waiting for a background check be required to pay the old amount or the new amount?
He added that if handled sloppily by Capitol Hill, Chinese investors could actually wind up with a choice between low-cost visas and more-expensive ones. If enough pick the cheaper option, pricier developments could lose their financing.
“The snag is, what will be grandfathered?” Orenstein said. “It could create a lot of confusion in the marketplace, which is not good for anybody.”
As it is, sources say, a flood of applications are now pouring into the United States Citizenship and Immigration Services, the federal agency that regulates visas, before any changes to the law are made.
Instead of a single-census-tract solution, many New York developers prefer a standard that factors in where workers live. The same people who work, say, in West Chelsea, at the Hudson Yards development, may live in an impoverished part of Brooklyn like East New York. So the spirit of the EB-5 law — to create jobs for people who need them — would be honored, Kalmykov said.
If some provision like that is not made, the Leahy-Grassley bill “would have a very adverse impact if implemented as drafted,” she said.
For its part, the Real Estate Board of New York, which is closely monitoring the issue, says that it supports the reauthorization of the program to protect against fraud, but “opposes changes that would disadvantage urban areas, and we are working to ensure that whatever program modifications do take place are phased in reasonably,” John Banks, the group’s president, said in a statement.
Job creation monitoring
Other changes proposed by Sens. Leahy and Grassley are less controversial in the New York real estate industry, like making the jobs requirement slightly more rigid.
Presently, the 10 required jobs can come in all shapes and sizes. In fact, a general formula usually determines how many jobs are created at certain levels of development spending, according to Gary Friedland, a New York University lecturer who has extensively researched the EB-5 program.
The Senate bill would require more. A project could create only 9 indirect jobs — for instance, in a store that opens in the retail base of a new condo building. One job would be required in which the person is employed directly by the landlord, like a security guard, or more commonly, a construction worker; in the last few years, after a provision of the law was loosened, long-term construction jobs began to be counted as direct jobs. But if the project takes less than two years to build, construction jobs are not counted.
That would seem easy to satisfy.
Take, for instance, 101 Tribeca, a 63-story, 130-unit condo tower at 101 Murray Street being built by Fisher Brothers and Witkoff Group. Its $735 million development cost is being defrayed by $175 million from EB-5 funds, according to “A Roadmap to the Use of EB-5 Capital: An Alternative Financing Tool for Commercial Real Estate Projects,” published in May by Friedland and NYU professor Jeanne Calderon.
The report says that the site must generate 3,500 EB-5 jobs, though with 4,548 overall jobs, including indirect jobs, expected to result from the project, it should easily hit its target.
In terms of job creation, a developer usually makes an effort to ensure there are about 20 percent more jobs than may be required, just in case anything goes wrong and positions are eliminated, Friedland said. Falling short could lead to investors not getting their visas.
Other major EB-5-funded projects under development include Eos, a 375-unit rental tower from the Durst Organization at 855 Avenue of the Americas, near Herald Square at West 31st Street. It raised $80 million in EB-5 funds, toward its $423 million cost, according to Friedland’s report.
There’s also the Bryant, a 33-story condo-hotel from HFZ Capital Group with 57 apartments and 230 hotel rooms at 16 West 40th Street in Midtown, with $53 million in EB-5 funds out of $253 million total, the report says. And the Charles, a condo with 28 full-floor units at 1355 First Avenue, on the Upper East Side, from Bluerock Real Estate and the Victor Group, with $$22 million out of $157 million.
But Related is by far the largest recipient of EB-5 money in the city, with $1.2 billion so far for its Hudson Yards mixed-use project on the far West Side, according to the Journal report. More broadly, Related controls one-third of the EB-5 market nationwide, The Real Deal reported in June.
Overall, more than $3.7 billion in EB-5 money has flowed to several dozen New York City projects over the past several years, a TRD analysis found.
The Leahy-Grassley bill, for all its proposed changes, has other features that New York developers embrace, like an effort to clamp down on regional centers, the for-profit bank-like intermediary organizations that bundle equity payments from overseas, then lend the money to developers at about a 5 percent interest rate, a much lower rate than on a typical development loan. The legislation creating the regional centers is what expired on Sept. 30.
Existing law required these centers pay a one-time launch fee of about $6,000; that amount would swell to $20,000 and become an annual fee under the bill, which would also subject the centers, about 60 of which are in New York City, to more oversight.
It’s not entirely clear if changes to the law would hurt the B-5 market in New York. However, if the thresholds change and investors seek projects outside of New York in order to obtain visas at a lower cost, that could have a negative impact on the regional centers here. It is not certain that every center would survive, Friedland said.
Other proposed changes in the EB-5 law seem less controversial. The United States Citizenship and Immigration Services, the oversight body, would have more control over the process, which would depend less on self-reporting and more on documentation turned over to the Securities and Exchange Commission, according to the Leahy-Grassley bill. “It will prevent bad actors from operating in the system,” Kalmykov said.