An industry group representing 270 firms that raise money from foreign investors through the EB-5 program wants a voice in the SEC’s fraud case against local developer Lobsang Dargey and his company, Path America.
The federal fraud lawsuit against Everett-based Path America developer Lobsang Dargey could damage immigrants’ chances of getting visas and diminish the flow of billions of dollars of foreign direct investment to the U.S., says a national trade group that seeks to be heard in the case.
Invest in the USA (IIUSA), a D.C.-based group, asked the court’s permission Thursday to file an amicus brief in the case. It said it’s concerned about the fate of immigrants who each invested $500,000 in Path America’s projects in Everett and Seattle in hopes of becoming permanent U.S. residents by obtaining an EB-5 visa.
Work on the two projects ground to a halt in late August when the Securities and Exchange Commission (SEC) sued Path America and Dargey, its founder, alleging the Bellevue resident had diverted more than $17 million of investor funds for his own use or unauthorized projects. Dargey lost control of Path America on Oct. 22 when U.S. District Court Judge James Robart put the company in receivership.
Of the 250 Chinese nationals who invested in Path America’s projects, the 170 who contributed capital to the just-begun Potala Tower in Seattle are most exposed, though several have asked the court for refunds.
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In court briefs, SEC lawyers cast doubt on Potala Tower’s viability. Path America told investors that the project would cost $188 million, with $122 million in funds from EB-5 investors, $30 million from Path America and $36 million in construction loans.
So far Path America has raised $85 million in EB-5 funds for the project, $37 million shy of its target. Moreover, the SEC alleges, Dargey misappropriated about $35 million from the Potala Tower account, including a $15.8 million personal loan.
Voya Insurance and Annuity Co. has committed to lending the tower project $66 million, and a Shanghai firm has invested $30 million for a 20 percent equity stake in it. But that may not be enough to finish the project, the SEC alleges.
In response, Dargey attorney Daniel Dunne said the tower can be finished given that Dargey and Path America are committed to “repayment of all funds borrowed from the Tower project.”
The national trade group says killing the project would end the Chinese immigrants’ quest for permanent U.S. residency and have ripple effects on IIUSA’s 270 member firms, which raise capital from foreign investors through EB-5.
“Since 2008 the Program has generated $11.92 billion in foreign direct investment that stimulates U.S. economic growth, providing hundreds of thousands of jobs to U.S. nationals,” according to IIUSA.
After the SEC sued a Chicago EB-5 promoter in 2013, the pace of EB-5 investor applications to the federal immigration agency slowed considerably, and picked up only after immigrant investors in that deal received refunds, IIUSA says.
In the Path America case, however, construction began and investors’ funds are tied up already.
IIUSA said it has no stake in the SEC’s civil fraud case against Dargey, who rose from an obscure immigrant to well-to-do developer in barely a decade.
Because the number of Chinese EB-5 applicants vastly outstrips the number of visas allotted, Path America’s Chinese investors can’t start over without facing a years-long delay.
How the court treats the investors’ interests could have broad implications for the EB-5 program, IIUSA said.
“If this reputation is tarnished even slightly, IIUSA’s members will face significant decline [in] investor confidence, which in turn diminishes the Program’s capacity to create jobs, improve the economy, and expand the United States’ tax base.”