SEC Continues to Aggressively Monitor EB-5 Investments

As we noted recently, the SEC has been looking closely at companies raising money through the EB-5 investor program under which foreign investors can obtain a Visa for residence in the US if the investor makes qualifying investments in the US.  We noted here recently that the SEC earlier this year brought its first enforcement action against parties who raised money through the EB-5 program.  Anecdotal evidence suggested that the SEC was looking closely at a number of other companies that had used the EB-5 vehicle.  Now, the SEC has brought another enforcement action against some individuals and related energy companies in Texas for allegedly perpetrating a scheme to defraud foreign investors through the EB-5 program.  This action further evidences that the SEC is here to stay in the EB-5 area.  Companies using the EB-5 vehicle to raise funds must comply carefully not only with rules and regulations on the immigration side but also on the securities side.  Even very legitimate companies raising EB-5 funds may see some SEC scrutiny to ensure they are in compliance.  It is imperative that companies seeking to use EB-5 to raise funds employ qualified transactional counsel at the outset, and, if the SEC comes questioning, be prepared with securities litigation counsel to quickly and accurately respond to the SEC's inquiries.