Private Offering Vs. illegal fund raising under china criminal law and supreme court interpretations

Few basic factors to know re China law

·        You are subject to China law jurisdiction as long as you are doing business in China; consequences or result are majorly happened in China, the other party is a Chinese citizen or the agreements between parties are stipulated to be subject to China law.

·        Subject to international law and multilateral treaties and federal regulations, verdicts/holdings from a China court CAN be enforced in the United States

·        Please use caution and always consult a domestic lawyer for labor/business/government compliance issues in China

What is “Illegal fundraising” in China criminal code law and binding Supreme Court interpretations? Here comes my disclaimer: this is not legal advice nor legal opinion; purely for information purposes.

There are fine lines between illegal fundraising and private placement in China law.  For all your reference, I am outlining the law below.  Please note that China is a “Code Law” legal system society and precedents do NOT have binding judicial effects to a later case.  Also China law stipulation and degree of enforcement are heavily dependent on the political and social climates.

On Jan 3, 2011, The Supreme People's Court released the Judicial Interpretations to Issues Concerning Applications of Laws for Trial of Criminal Cases on Illegal Collection of Funds.

Under the Interpretations, "where any party or individual offer, or offer in such disguised form as equity transfer the stocks or company or enterprise bonds to unspecific objects without approval of the relevant authorities, or offer, or offer in disguised form stocks or company or enterprise bonds to more than 200 individuals", such activities shall be deemed as issuing stocks or, company or enterprise bonds without due approval as stipulated by Article 179 of the Criminal Law; where the any crime is found, the relevant party or individual shall be investigated and punished as the crime of issuing stocks or, company or enterprise bonds without due approval.

The Interpretations also stipulated that where any party or individual provide advertisement services and other promotion services for the relevant parties or individuals under the precondition that the party or the individual is aware that they are engaged in issuing stocks and bonds in fraud manner, illegally raising public funds, issuing stocks or bonds without any due approval, fraud fund-raising or organizing and leading pyramid marketing, such party or individual shall be deemed as complicity of the crimes.

USCIS released new I-526 and I-829 datas

美国移民局在昨天(5/12012)的StakeHolder 会议上发布了最新的I-526及I-829的数据。

数据显示2012年截至第二季度，I-526收件2771件，批准2101件，批准率为85%。I-829收件375，批准率为96%。 应该注意的是这个数字不应简单按照时间推算，因为很多案件可能是上年递交刚得到审理。不过从移民局提供的历史数据看，从2005年到目前，I-526 的总体批准率为83%， I-829的批准率为84%.

移民局在EB5就业模式“Tenants- Occupancy"上的最新观点

近期因为个别商用楼Eb5项目的就业计算使用了“Tanants-Occupancy"的模式被移民局发了RFE，而在Eb5界引起了轩然大波，并进而使得市场方面有了很多不确定因素。今天移民局局长Mayorkas 的就有关“Tenant-Occupancy”问题和与会人员进行了讨论，移民局就此问题的观点总结如下 （感谢LUCID提供会议语言记录）：如果哪位想听原版录音，请点击这里

“First, if I can provide you with some assurances. We well understand the law, that there is no requirement to present a particular methodology in support of a petition. Rather, the law requires a “reasonable” methodology. Whether or not the tenant occupancy methodology is reasonable in proving job creation in a particular case is a fact-specific and fact-dependent inquiry. We have not changed any policy with respect to the tenant occupancy methodology, nor have we changed the applicable criteria.

首先，如果我可以提供一些保障的话。 我们（移民局处理Eb5的团队）非常了解法律。法律并没有规定一定要有一个特定的方法论来计算就业模式。法律要求有一个”合理的”方法论。 对于“租户-租占率”是否在案件中证明合理，是一个就特定事实和案件特定因素决定的（移民局的怀疑不是普世的“。移民局并没有改变审理的方法论，也没有改变法律要求。

This is, instead, what we have done. In response to the request of adjudicators and your — stakeholders’ – request – and a very appropriate request — we have hired full time economists and business analysts to improve the analysis of EB-5 petitions and the quality of our work. I should note also that we have announced or are about to announce other positions as well such as a hiring of corporate attorneys to interpret the many legal documents that petitions often include. Our new experts have reviewed cases, not previously adjudicated, that are predicated on the tenant occupancy methodology, and based on the specific facts of those cases have raised questions as to whether the evidence presented proves the required job creation, or instead merely establishes job relocation, for example. We have issued Requests for Evidence to obtain additional evidence that our experts will review and analyze.

我们已经请了全职经济学家及经济分析人士来改善我们对EB4就业模式的理解及我们审理的质量。而且我们还准备雇佣商业/公司律师就投资文件的合法性进行解释（SS 旁白：投资文件/商业文件的事情是移民局该管的吗？）我们新的专家看了很多申请，不是已经审理过的，而是目前关于”Tenant-Occupancy“计算就业的的案件，并就那些案件中的个别特殊的事实有一些疑问 - 那就是，到底这些就业条件产生了所要求的就业呢，还是仅仅建立了就业上的工作地点的重新定位。 我们发了一些RFE来就这些疑问取得更多的证据以供我们的专家来审理及分析。

A decision, as I mentioned, on the economic methodology presented in the EB-5 case, including the tenant occupancy methodology, is very fact specific. Consistent with our deference policy, we are communicating to our adjudicators that they are to accord deference to prior adjudications. Our adjudicators should rely on a previous determination that the economic methodology is reasonable when the economic methodology is presented to us in later a proceeding based on materially similar facts.
For example, if we approved a Form I-924 Regional Center Application based on a specifically-identified project, including the specific locations and industries involved, we will not revisit the determination that the economic model and underlying business plan were reasonable when adjudicating related Form I-526 petitions, Form I-485 applications, or Form I-829 petitions. If we approved an I-526 petition for an immigrant investor based on a specifically-identified project, not associated with a Regional Center, we will not revisit the determination that the business plan was reasonable when adjudicating the investor’s related I-485 or I-829 petition. If, however, the facts underlying the application of the economic methodology have materially changed, then we will conduct a fresh review of the new facts to determine whether the petitioner or applicant has complied with the requirements of the EB-5 program, including the job creation requirement”

就此就业模式的决定，是非常个别化的，并且根据案件的不同而区别的。我们已经通知我们的审理人员他们需要遵守以前的合理判例。我们的审理人员如果在发现和以前的判例有基本相似的事实条件的案件上，要按照以前批准的案例进行审理。
例如：如果我们批准了一个I-924的区域中心的申请，而当时的申请是建立在一个特定的项目，包括特定的地点和工业，而此申请已经获得批准，我们就不会在审理I526或者I829或者485 的时候再次审理已经获得批准的关于就业的模式或者商业计划。 但是，如果基于当时审理的事实有了巨大改变的话，那么当时批准审理的根基已经不存在，我们就需要对新的事实和就业计划的合理性进行新的分析， 来决定项目是否遵守了EB5法律。

KeeLong Night Market - Taiwan

Taiwan KeeLong Night market, with beautiful Doris...
as live as I look in the picture, I was floating deadly tired with jet-lag. 
Thank you Doris for your nice treats and home-feel sistership and kindness.

Yun Nan

彩云之南，谓之云南。

飞机上空姐的广播，身边顽皮的孩童，并不能分散我欣赏3万英尺下的这块裸露的美丽红色土地。

当我纠缠于不能释怀的人性，马不停蹄的旅行，缺氧的会议，无数的问题，所有的开怀的和不开怀的经历。当生命和时间在肩膀的酸痛中流失，当我在一个又一个陌生的城市揉醒眼睛，身边的闹钟提醒下一个会议是30分钟后。疲惫如排山倒海的降临。仿佛间已经忘记了工作的初衷。

但是如果当时间静止，世界按照我想象的发展，可能我也会一样郁闷死吧。

terribly sick - i miss healthy me...

Sorry for my silence these days… being terribly sick and I firmly believe cold virus are becoming more and more vicious…
hope to get back on the ground soon....

Chinese Parents when facing immigration

Recently, I reviewed many EB5 investor files. Each file represents a little personal story; SOF will tell financial success; personal docs will tell child-born, marriage, divorce, remarriage, or death of a family member.  Of the piles of paper reviewed, often times I was mostly stroked on many levels of how Chinese parents handle their children’s immigration future even after the parents are long-time divorced; often times under the situation where the un-custodial mother/father gets remarried and is now applying US immigration through EB5 with the new men/women.  100% of the situation is that the Child’s custody (if not under the EB5 beneficiary mother/father) will be transferred to the immigrating mother/father through either civil litigation or voluntarily abjuration of custody over that Child by the not-immigrating mother/father.  Regardless of how fierce the custody war over that child was when the parents were divorcing, unanimously, the child now “belongs to” that immigrating parent.  No objection WHATSOEVER from the other parent…

Many times I will see court papers stating such custody transfer without ANY condition and even the non-talking parents are now agreeing on times of visiting.  More often than not, I will see statement titled “no objection to XXX’s immigration with mother/father” ended with a sentence of “I will never regret give up custody …”  Disregard the legality of such statement under China/US laws, such statement and the language it contains often makes me feel unappeasable sadness. When facing their children’s future (immigration in this matter), the parents choose to clean up whatever in the way to pave a better path toward what they believed is better for the child….

As I was reviewing a similar file this morning, where the court paper for custody transference is dated March 10, 2012,  I can’t help but writing the above, dedicating to my client, and my parents.

A little piece of China - express train (video)

Please ignore the snores next door... :)