By Professor Matthew W. Daus, Esq. & Mona Shah, Esq.
Congress created the EB-5 Program in 1990 to benefit the U.S. economy by attracting investments from qualified foreign investors. Under the Program, each investor must prove that at least ten new jobs were created or saved as a result of the EB-5 investment. More than 25 countries, including Australia, Portugal, Spain, and the United Kingdom, use similar programs to attract foreign investments; however, the American program, requiring substantial risk, is more stringent than others. Often dubbed as the Congressional Program of “cash for green cards or visas,” mezzanine investments for transportation projects and infrastructure are, generally, underrated. The EB-5 Program has typically been the preferred route for real estate development projects, as developers have been increasingly turning to EB-5 as a plausible (and increasingly credible) alternative financing mechanism. It can be structured as a short-term low-interest non-secured loan without diluting the property owner’s equity. Additionally, recent guidelines have increased the Program’s flexibility, allowing a project to receive credit for job creation after construction has commenced and EB-5 capital has been received to replace interim or bridge financing. EB-5 financing can be used even if it is not contemplated prior to acquiring the temporary bridge financing.
With real estate projects leading the market, the question that is proposed is the following: is there room for another industry to benefit from the EB-5 Program? The answer is yes. For example, EB-5 has attracted investor capital in the trucking industry, as EB-5 projects capitalize on the strong presence of transportation and are relatively simple in nature. Trucking companies, while not requiring sophisticated real estate assets, are generally located in low-income industrial areas. Thus, EB-5 investment helps to revitalize such areas by generating income for local workers.
Recently, the United States Citizenship and Immigration Services (a component of the United States Department of Homeland Security) approved an innovative EB-5 transportation initiative entitled the “New York City Green Transportation Group” (NYCGTG), which provides for-hire vehicle ground transportation services and related job creation for a company known as NuRide Transportation Group. While the advantages of a transportation project in bustling New York City are obvious, would this application of EB-5 investment hold firm for the rest of the United States? It is proposed that the viability of transportation projects speak for themselves. Indeed, transportation around New York City alone is a $40 billion industry, while the trucking industry in the entire United States is a $650 billion industry, with roughly 97 percent of all trucking companies owning less than 20 trucks.
Transportation is a natural fit with EB-5 not only due to its viability and simplicity, but also through its high job creation, which is mostly direct and permanent in nature, unlike construction projects, where the construction timeline varies from project to project. The total number of jobs that a particular transportation project will create determines the maximum amount of EB-5 capital potentially available to fund that project. The emergence of projects such as the NYCGTG opens doors to infrastructure projects that, while not on a grand scale, will nonetheless have a profound impact on inner urban lifestyles, including the improvement of wheelchair accessible services and the environment. Through foreign investment money, projects of this nature could solve many of New York City’s - and the United States’ - longstanding transportation policy issues and problems.
As per the challenge of wheelchair accessibility in transportation, the primary obstacles to solving the problem of costly and inadequate (or non-existent) service for disabled passengers include a combination of additional vehicle retrofitting costs, higher insurance premiums and other operational losses, including fewer fares for drivers re-routed to pick up disabled passengers. Independent for-hire vehicle and taxicab driver owners/operators incur these extra costs directly, while fleet owners experience the added difficulty of enticing drivers to lease or drive such vehicles when they can earn more income driving for Transportation Network Companies, such as Uber, or other non-accessible vehicle fleets. The use of a centralized dispatch system by New York City for the exclusive participation of all wheelchair-accessible taxicabs, launched during the Mayor Bloomberg/Commissioner Daus administration at the city’s Taxi and Limousine Commission (TLC), is a noble and excellent start towards addressing this long-term problem. However, on the for-hire vehicle side (i.e. limousines, black cars and liveries), the TLC has struggled to find a way to integrate this transportation sector into a wheelchair-accessible mandate. This non-optimized private for-hire service is compounded by the lack of integrated public transit accessible service in the city’s paratransit system - known as “Access-A-Ride” and operated by the Metropolitan Transit Authority (MTA) - where per-ride subsidized costs for multi-passenger vans are in excess of $60 per passenger. These costs can be made comparable to those of taxicabs and liveries; for example, by employing direct point-to-point service by private broker contractors with the MTA, saving millions in taxpayer subsidies each year at a cost of approximately $20 per passenger. While the blueprint for government solutions to transportation service problems such as those described above may eventually improve program delivery dramatically over a long period of time, it is anticipated that the journey would continue to involve bureaucracy, costs or subsidies, and political impediments. The EB-5 Program, however, offers the opportunity, at no taxpayer expense and with a net American job-growth gain, for a quicker and easier private sector solution, via foreign investments.
Additionally, as to the issue of providing environmentally sustainable for-hire vehicle ground transportation, the setbacks of the past several years to reduce the carbon footprint can now be overcome. The hybrid-electric initiatives of the Bloomberg administration, which were sought as part of its “PlaNYC” sustainability program to mandate alternative fueled taxicabs, were overruled in litigation that the US Supreme Court refused to hear after a ruling by the US Court of Appeals for the Second Circuit. The courts resolved the issue firmly against regulatory mandates for clean air taxicabs and effectively short-circuited similar programs around the country overnight, including San Francisco, Chicago, Boston, and elsewhere. Presently, while there are various clean air vehicle regulatory incentives, the mass introduction of such vehicles has taken a back seat due to the Great Recession, litigation and the unprecedented growth of Transportation Network Companies such as Uber and Lyft, which are flooding the streets of America with a seemingly unlimited amount of petroleum-fueled vehicles. Once again, however, projects such as NYCGTG involve a commitment to the use of alternative-fueled vehicles, including hybrids, pure electric plug-in vehicles and other mitigation measures. As stated above, the NYCGTG project involves the use of foreign investment, not taxpayer subsidies, to pay for more expensive, yet cleaner, vehicles to help the environment.
In terms of technology, the use of a smartphone application known as La Puma as part of the NYCGTG EB-5 transportation project provides a pre-arranged service geared towards both the wheelchair accessible community and the broader population. A step in the right direction, the La Puma app will result in the more efficient use of the limited number of wheelchair-accessible vehicles on the road to maximize service delivery. While the use of telephone dispatch systems may still be necessary, the La Puma app, due to foreign investment dollars, provides a niche market service affording civil rights protections, while concurrently establishing some much needed competition to Transportation Network Companies such as Uber; a 50 billion dollar company which does not realistically provide, and in fact typically resists, the provision of wheelchair accessible services.
Finally, the independent contractor model in the taxicab and limousine industry, which has been the norm for many decades, is clearly causing grief for companies like Uber, with class action worker classification lawsuits, government proceedings and investigations. The independent contractor model highlights the challenges present in delivering wheelchair accessible services, due to both the excessive operational costs for contractors/drivers and the downtime between trips and lost revenue. All of these issues disappear for the driver in this new EB-5 project, where the driver is an employee trained to provide accessible service, and who is paid by the hour for waiting time – with or without passengers in the vehicle. This new EB-5 paradigm is a job creation machine and not a mechanism to perpetuate an independent part-time economy solution for for-hire drivers (a concept that may otherwise be supported by many pro-labor political progressives). It may very well be that the employee/driver model is the key to ensuring that there are ample drivers and vehicles available to service the disabled community while providing less carbon emissions, and this experiment is part of the NYCGTG EB-5 project.
Our natural resources continue to be dwindled through the proliferation of gas guzzling vehicles and wheelchair accessible public transportation services are either virtually non-existent or do not provide equal access within the spirit of the Americans with Disabilities Act and local civil rights laws. Government regulators will continue to struggle amid legal challenges and political opposition in order to attempt to accomplish what the private sector is, for the most part, presently unable to – due to minimal profit margin opportunities in the existing accessible business model. However, EB-5 Programs present a rare opportunity for those in the private sector to now provide temporary operating foreign investment subsidies to fix transportation problems, such as reducing carbon-dependent vehicles or inefficient accessible service and by acting as the catalyst to jump-start private business ventures to provide quick, simple and more efficient solutions than government intervention could ever accomplish.
Where the government or the private sector cannot solve the problem, EB-5 can; it is our hope that more transportation projects will be funded and that Congress will continue to maintain and expand this program for the benefit of the general public through worthwhile projects such as the NYCGTG. This new and revolutionary EB-5 transportation program will: 1) improve the lives of Americans by creating local jobs; 2) help the environment; 3) provide a mechanism for true equal transportation access for the disabled; and 4) create a safer and more efficient service for passengers of public transportation.
Mona Shah: Mona Shah & Associates, PLLC
Born in the UK, Mona is a dual licensed attorney, in the UK and the US. While in England, Mona worked as a Prosecutor with the British Crown Prosecution Service, before moving to New York.
Mona has more than 17 years of experience and extensive knowledge of all facets of U.S. immigration law; her practical expertise ranges from specialist business petitions to complicated, multi-issue deportation and removal litigation in both state & federal courts. Mona is highly proficient and experienced in EB-5 law and practice, with hands-on experience setting up, working with and establishing EB-5 projects, both direct pooled investments and Regional Centers, nationwide. In addition, she has dealt with complex, multifaceted RFE’s for both Regional Centers as well as for the Investor.
Mona is the author of a published book for investors on the EB-5 laws and procedures. Mona regularly writes and publishes articles and opinions, as well as addressing investors and developers in EB-5 related seminars in the US and overseas. Mona has been interviewed by mainstream news channels and quoted in major newspapers. Mona was also voted as one of the top 25 EB-5 attorneys by EB-5 Investors.com. Mona is also an adjunct professor at the Zicklin Business School of Baruch College, part of the City Universities of New York. She teaches part time courses on EB-5.
Mona Shah & Associates have been instrumental in the success of numerous projects, crafting projects and marketing overseas, bringing in millions of dollars for the US as well as helping to create thousands of jobs.
 See Policy Memorandum No. PM-602-0083, US Department of Homeland Security/US Citizenship and Immigration Services, May 30, 2013, at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/May/EB-5%20Adjudications%20PM%20%28Approved%20as%20final%205-30-13%29.pdf
Zeuli, Kim and Hull, Brian. Increasing Economic Opportunity in Distressed Urban Communities With EB-5, June 2014, p. 23-25, at http://www.icic.org/ee_uploads/publications/ICIC_EB5Impact_Report.pdf
See Zeuli, Kim and Hull, Brian. Increasing Economic Opportunity in Distressed Urban Communities With EB-5, June 2014, p. 23, at http://www.icic.org/ee_uploads/publications/ICIC_EB5Impact_Report.pdf
 See “Taxi and Limousine Commission Approves Accessible Dispatch System Pilot Program”, November 13, 2007, at http://www.nyc.gov/html/tlc/downloads/pdf/press_release_11_13_07.pdf
 See PlaNYC – A Greener, Greater New York, 2007, at http://www.nyc.gov/html/planyc/downloads/pdf/publications/full_report_2007.pdf
 See Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152 (2d Cir. 2010), cert denied, City of New York v. Metro. Taxicab Bd. of Trade, 562 U.S. 1264, 131 S.Ct. 1569, 179 L.Ed.2d 489 (2011).
 See O’Connor v. Uber Techs.., 2015 U.S. Dist. LEXIS 30684 (N.D. Cal)
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