§ 20. EB-5 Program; regulation; oversight

(a) The U.S. Department of Homeland Security’s U.S. Citizenship and Immigrations Services (USCIS) administers the EB-5 Program, a federal program designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. The Vermont EB-5 Regional Center is a USCIS-designated regional center. The Center is managed by the Agency of Commerce and Community Development in partnership with the Department of Financial Regulation.

(b) The Agency of Commerce and Community Development has the personnel and resources to market and promote economic opportunities in Vermont, whereas the Department of Financial Regulation has the personnel and resources to supervise financial services and products offered in Vermont in a manner that advances fair business practices and protects the investing public. It is imperative that management of the EB-5 Program reflect the existing expertise of both these State entities.

(c) The Secretary of Commerce and Community Development and the Commissioner of Financial Regulation shall separately adopt rules pertaining to the administration and oversight of the EB-5 Program. The rules shall be consistent with federal regulations and requirements as well as with the statutory expertise of the Department and Agency.

(d) The rules adopted under this section shall be modeled after the Memorandum of Understanding between the Agency of Commerce and Community Development and the Department of Financial Regulation, dated December 22, 2014, which pertains to the duties and responsibilities of the Agency and the Department with respect to the EB-5 Program. As such, the rules shall include provisions related to:

(1) communication with and reporting to the USCIS;

(2) marketing activities;

(3) required provisions pertaining to private placement memoranda;

(4) securities analysis and standards for project approval;

(5) ongoing oversight and compliance of approved projects, including annual audits;

(6) the establishment of escrow accounts for capital investments and third-party oversight of requisitions, if deemed appropriate by the Commissioner and Secretary;

(7) investor relations and a formal complaint protocol;

(8) standards for revoking approval of a project;

(9) penalties for failure to comply with rules adopted under this section;

(10) communication between the Agency and the Department, as well as with media outlets and with other regulatory or law enforcement entities;

(11) fees and costs of the Regional Center, consistent with subsection 21(c) of this title; and

(12) any other matter the Commissioner and the Secretary determine will strengthen the oversight and management of the EB-5 Program and prevent fraudulent activities.

(e) The rules adopted under this section shall explicitly state that any interest obtained through a capital investment in the EB-5 Program is a “security” as defined in 9 V.S.A. § 5102(28) and as such is subject to regulation by the Commissioner of Financial Regulation under the Vermont Uniform Securities Act, 9 Vt. Stat. Ann. chapter 150. (Added 2015, No. 149 (Adj. Sess.), § 34b.)