Investor Visas for Sale, $500,000 a Pop

Over the weekend, the Kushner family (yes, the family members of Presidential senior adviser Jared Kushner) got caught in China trying to sell investor visas to wealthy Chinese.

Well, let me rephrase that.

The Kushner family presentation in Beijing promoted the opportunity for these wealthy individuals to invest $500,000.00 in a Kushner family real estate development in New Jersey, and by doing so, they would be eligible to qualify for an EB-5 visa.  The fact that the Kushner family mentioned Jared Kushner, and that he currently works for the President (insinuating that some strings could be pulled), is being explained as a regretful oversight. Understandably, a lot of people think this might be problematic.

EB-5 Investor Visas

The EB-5 Program was created, according to USCIS, in 1990 to stimulate growth in the American economy. To qualify for such a investor visas, the applicant must invest a certain amount of capital into a new commercial enterprise and that investment must include a plan to create or preserve 10 full-time jobs for U.S. workers.  Generally, a minimum of $1,000,000.00 is required, unless the investment will be in a rural or a high-unemployment (150% of the national average) area. USCIS’s guidance on the program clearly promotes Chinese investment. For example, there is a prominent link to a Simplified Chinese version of the filing tips, while other languages are hidden.

Investor Visas
EB-5 Filing Tips, promulgated by USCIS.

And that’s all well and good. Investment is generally good for the economy, and people need jobs.

Cash for Access

The unseemly side of the Kushner family’s presentation, though, is the insinuation that the investment in the Kushner family’s development will automatically result in the receipt of EB-5 investor visas.  And that begins to look and feel a lot like bribery.

Bribery is generally criminalized by 18 U.S.C. § 201. There are a lot of ways to commit bribery under this statute, and there are a lot of people covered by it. For example, bribery–in simplified terms–is:

  • directly or indirectly giving anything of value to a public official, with intent to influence any official act.
  • being a public official, and directly or indirectly demanding anything of value in return for any official act.

A “public official” is, inter alia, an officer or employee or person acting for on behalf of the United States or any branch of United States government.

And there are a couple of ways this Kushner family scheme smells.

In the barest of senses, if the investors were paying Jared Kushner directly, expecting him to pull the right strings to get them their investor visas, that would, at the very least, constitute bribery by the Chinese investors. Likewise, if Jared Kushner were demanding the investors pay him the $500,000.00 to get him to pull the strings, that would also constitute bribery.

Investor Visa
Textbook Bribery

Is One Step Removed Enough?

Taking the Kushners at their word, that Jared Kushner divested himself from the real estate project completely (a suspect proposition, but let’s run with it), there would be one additional layer that could theoretically pull this deal out of the realm of bribery. That’s because Jared Kushner would not be part of the transaction.  He’d be in the background, a conveniently name-dropped individual, but nothing more.

Investor Visas
Is this bribery or not?

These examples are obviously simplified, because Jared Kushner, as adviser to the President, is not the person in charge of issuing investor visas.  Nonetheless, it creates an unseemly situation, that is compounded all the time by the Presidents words and actions, and by the President’s family’s words and actions.  The erosion of heretofore traditional rules and norms that prevented such appearances of impropriety–“erosion” isn’t even a strong enough word because it connotes degradation over a long period of time, and the disregard of appearances has been stunningly swift–threatens to overwhelm the public’s ability to prevent such destruction.

At the end of the day, it’s a tempest in a teapot.  Like most things of questionable ethics and legality the Administration has done since taking office, it is unlikely anything will come of this investor visa scandal other than some blog posts and news articles. Time will tell, however.

Federal Point Shaving Indictment

I don’t have any real basis for thinking this, but I suspect that most people probably think that point-shaving is undesirable behavior, but not necessarily criminal in nature.  Well, lest anyone think otherwise, the Detroit Free Press reports that six individuals have been indicted by a federal grand jury for allegedly violating 18 U.S.C. §§ 224 (“Bribery in Sporting Contests) and 1952 (“Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises”).

The general provisions of section 224 state that it is a crime for an individual to conspire with others “to carry into effect any scheme in commerce to influence, in any way, by bribery and sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest.”  It is punishable by a fine, up to five years in prison, or both.

Section 1952 is somewhat different.  It states that it is a crime for a person “travel[] in interstate or foreign commerce or use[] the mail or any facility in interstate or foreign commerce,” with the intent to distribute the proceeds of any criminal activity; commit any crime of violence to further any unlawful activity (this is not alleged in the indictment); or otherwise promote the carrying on of any unlawful activity.  Punishment for violating section 1952 is a fine, up to five years in prison, or both, unless a crime of violence is committed, in which case, the punishment can be a fine, up to twenty years in prison (life if death occurs), or both.

The indictment has been thoughtfully posted by the Detroit Free Press.  As with all indictments, it must be remembered that the individuals involved are innocent until proven guilty, and that anything in an indictment is merely an allegation.