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Monthly Archives: July 2023

Ajmera Law   →  2023   →  July
July 24, 2023
July 24, 2023

Indian Investors Welcome to Invest Abroad at Their Own Risk

Author By Prashant Ajmera Categories Indian Regulatory Updates

“Indian Investors Welcome to Invest Abroad at Their Own Risk

Government Shows No Intention to SafeguardsIndian Investors”

In light of the changing demands of businesses in India within an increasingly interconnected global market, it is essential for Indian corporations and citizens to participate in the global value chain.

The revised regulatory framework for overseas investment aims to simplify the existing framework and align it with current business and economic dynamics. This introduction of “Overseas Direct Investment” and “Overseas Portfolio Investment” under the Foreign Exchange Management Act (FEMA) has shifted various overseas investment transactions from the approval route to the automatic route, significantly improving the ease of doing business.

However, these regulations, rules, and past provisions have failed to adequately protect Indian investors and consumers by regulating foreign professionals and businesses who wish to attract Indian investors.

Since 2007, Indian companies and citizens have been engaging in outbound investment, with last year’s Reserve Bank of India (RBI) data indicating significant investments and remittances by Indian citizens of US$ 27 Billion and over $4 billion in investments per month by Indian corporations outside of India.

Given the size of the Indian market, it has attracted a large number of foreign professionals and companies who regularly visit or establish offices in India without any restrictions or regulatory licensing requirements.

“Disparity in Professional Licensing Regulations: Foreign Professionals Operate Without Restrictions in India, while Indian Professionals Face Stringent Regulation”

Let’s examine some real examples of the absence of licensing requirements for foreign professionals and companies aiming to attract Indian investors:

  1. Foreign Financial Advisors and Brokers:

According to RBI data from the previous year (2022-23), Indian citizens invested US $1155.44 million in foreign equity and debt products. Over the past 5-7 years, numerous foreign brokers and financial advisors have either visited India to attract Indian investors or established offices in India without any regulatory or licensing requirements from SEBI, RBI, or any state or central government agency.

Foreign professionals’ approach is straightforward: they find Indian citizens who will market their services in India, and these individuals are asked to register a company and rent an office in a business canter to initiate their operations in India.

Conversely, Indian citizens wishing to practice as financial advisors or professionals or MFDs need to obtain a license from SEBI as one of the licensed intermediaries. Recently, SEBI has taken strict action against many Indian citizens providing financial advice through social media platforms.

However, SEBI and RBI have completely disregarded foreign financial advisors, brokers, and companies that open offices or visit India regularly to attract Indian investors. If these foreign financial advisors and companies engage in fraud or misrepresentation with Indian investors, there are no remedies available to the Indian investors.

      2.Foreign Real Estate Developers and Brokers:

RBI data on foreign remittances for the years 2022-23 reveals that Indian citizens invested US $171.81 million in foreign real estate.

A considerable number of foreign real estate developers and brokers frequently visit India and open offices to market foreign real estate projects and properties in the country. When these developers visit India, no questions are asked about their marketing activities, and their projects are often endorsed by Indian celebrities. Many developers from neighboring countries have already established offices in India, with more on the way.

However, if you are an Indian real estate developer or broker, you are subject to the Real Estate Regulatory Act (RERA), and your projects must be approved by the respective state’s RERA authority. Even Indian real estate brokers must register with RERA.

It is puzzling why there is a double standard when it comes to marketing foreign real estate projects to Indian investors or consumers. Are we presuming that all foreign projects are safe and require no regulation, or are we waiting for another significant scandal to occur?

Foreign real estate developers either visit India or open offices with the help of Indian citizens who register companies with the Registrar of Companies (ROC) in the respective states in India. The ROC does not question the nature of their business, allowing these companies to enter the Indian market without any restrictions.

Many foreign companies genuinely interested in attracting Indian investors are surprised to discover that they can enter the Indian market without requiring any government approval. They can conduct seminars in five-star hotels and directly engage with Indian consumers.

         3. Foreign Lawyers Operating in India

Although the Indian Advocates Act of 1961 clearly states that only Indian lawyers licensed with the State Bar Council can provide legal services in India, some foreign lawyers have found a way to circumvent this restriction. They register a company in India with the Registrar of Companies (ROC) and enter the Indian market without any regulatory requirements. The Bar Council of India (BCI) and state bar councils have also failed to regulate or take action against these foreign lawyers operating in India in spite of the Supre Court judgment in this matter. 

It is also worth noting that some foreign governments have issued licenses to practice specific areas of foreign law to Indian citizens who are not Indian lawyers or advocates. This is also a violation of the above law and no action from the respective government agency.

Additionally, many foreign-regulated legal consultants visit India or open offices in the country, even though they are not Indian lawyers or advocates. These foreign legal professionals boast about being licensed in their respective countries.

However, the question remains: if Indian consumers are defrauded by these foreign-regulated legal consultants or foreign lawyers, what remedies do they have other than filing a First Information Report (FIR) or making a police complaint?

         4. Foreign Education Institutes Recruiting Indian Students:

In India, starting an educational institute at the school or post-secondary level requires complying with regulatory requirements to protect Indian students and their families from becoming victims of fraud and ensure they receive a quality education at a reasonable cost.

However, if you are a foreign educational institute, you can come to India, market your institute, associate with student visa agents or consultants, and start recruiting Indian students without facing any restrictions or requirements. There is a lack of regulations and reduced requirements for foreign education institutes and Indian education and visa consultants.

Many of us may remember the foreign recruitment fraud in the early 1970s and 1980s from several neighboring countries. This compelled the Indian government to regulate foreign recruiters in India by implementing the Emigration Act of 1983.

Considering the numerous instances of foreign education-related fraud in 2017 and 2018, the Minister of External Affairs at that time introduced the Emigration Bill 2019 to regulate foreign education institutes and Indian student visa consultants. However, due to COVID-19, this bill could not be implemented, and a revised Emigration Bill 2021 was enacted, which removed provisions to regulate foreign education institutes and Indian immigration and student visa consultants.

In response to a question posed by a Member of Parliament in the Indian parliament, the respective ministry stated that they receive two complaints per day regarding foreign education and visa fraud. Despite the abundance of such stories in both online and offline media, the authorities concerned have chosen not to take action to protect Indian consumers and citizens.

In conclusion, according to RBI data for the years 2022-23, the total foreign remittance and investment in the aforementioned categories amount to US $27 billion (approximately Rs. 221,859 crores). However, there is no regulatory framework in place to regulate foreign professionals and businesses aiming to attract Indian investors, leaving Indian consumers without adequate protection.

About the Author:

The author of this article/blog is Prashant Ajmera, an Indian immigration lawyer and the founder of Ajmera Capital. He has been a Canadian citizen for the past 30 years and is also the author of two books: “Millionaire of the Move” and “How to Plan for Your Child’s Foreign Education: Myth vs. Reality”. He has been assisting and advising parents o the subject of Financial Planning for Foreign Education.  Consult us

July 16, 2023
July 16, 2023

New EB-5 RIA Rules Provide More Safeguards to Investors

Author By Prashant Ajmera Categories Consult Immigration Lawyer, E2 business visa, EB-5 US Investor Visa, US Immigration attorney, US Immigration Lawyer, USA

The provisions in the New EB5 Reform and Integrity Act will allow investors to make investments in Regional Center EB-5 projects with more confidence. 

These are FAQs on new New EB5 Reform and Integrity Act effective 15th March 2022 to 30th September 2027

  1. What are the new EB-5 rules that came into effect in March 2022?

Ans: Under new EB-5 rules, the investment amount has increased from US $500,000 to US $800,000 for rural areas, high unemployment areas or an infrastructure project. The amount has been increased from US $1,000,000 to US $1,050,000 for any other area and any other project /business. In either case, the investment must be made into a new business entity and must create at least 10 jobs for Americans.

  1. For what period of time will this new rule be applicable?

Ans: The new rules are effective for a period of five years, that is, until 30th September 2027.  

  1. How will this new rule affect my pending EB-5 petition?

Ans: The new EB-5 rules provide for grandfathering of pending petitions, meaning that all pending EB-5 petitions will not be affected by these new rules. The EB-5 program is reauthorized until September 30th, 2027. The pending petitions will continue to be processed even after this date in the event the outcome of the petition is not decided.

  1. What is a rural area?

Ans: In general, an area with a population of less than 20,000 people as per the latest US census is termed as a rural area. 

  1. What is a high unemployment area?

Ans: An area is designated by the Secretary of Homeland Security as a high unemployment area when unemployment is 150 per cent of the national average unemployment rate.

  1. Is there any quota for EB-5-based Green Cards in the USA?

Ans: Yes, there is an annual quota of 10,000 Green Cards per year. From this quota, 20% is reserved for rural areas, 10% for high-unemployment areas and 2% for infrastructure projects. 

  1. Who decides if an area is a high unemployment area?

Ans: Only the Secretary of Homeland Security or a designee of the Secretary can determine if an area can be designated as a high unemployment area. The federal, state or local government does not have the authority to designate a high unemployment area.

  1. What is an infrastructure project and who determines which projects are infrastructure projects?

Ans: An ‘infrastructure project’ means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority). The Secretary of Homeland Security or a designee of the Secretary will determine if a project is an infrastructure project or not. 

  1. Will there be a rise in the EB-5 investment amount in the near future?

Ans: Under new rules, the EB-5 investment amount will increase every five years as per the consumer price index. The next revision will be on or after 1st January 2027. 

  1. I am in the US on legal status, so when can I file for an EB-5 petition (I 526) and an adjustment of status (I 485) petition?

Ans: Under the new rules, any foreign national who is on a legal visa status may file a petition for EB-5 and adjustment of status at the same time. In other words, you can file for I 526 and I 485 at the same time.

  1. Under new rules how will “indirect job creation” be calculated”?

Ans: Under new rules, only 90% of the estimated indirect job creation will be considered for job creation and if it is indirect job creation in a real estate project, then only 75% of the estimated jobs will be considered for job creation.

  1. Is there record-keeping and audits for regional centres under the new rules?

Ans: Yes, under the new rules, regional centres are required to keep a record for a period five years after the last transaction is made and also undergo an audit every five years.

  1. Are projects promoted by regional centres approved by the US government?

Ans: Under new rules, each regional centre must pre-approve its project before it raises funds and before investors file an I-526 petition. Under the old rules, it was voluntary for the regional centres to obtain pre-approval of the project. 

  1. Who can own, run, manage and operate a regional centre?

Ans: Only Green Card holders and American citizens can get involved in owning, managing and operating a regional centre provided – the person has a clean criminal record, does not have any ongoing criminal cases pending against him/her, has never been convicted of any crime such as securities law violations, illegal trafficking of contraband substances and such other violations. Additionally, no foreign government or entity can get involved in a regional centre.

  1. Are persons working for and affiliated with a regional centre subject to any law?

Ans: Under new laws, not only owners but also promoters, directors, managers, employees, associates, marketing agents and other associated personnel of a regional centre must remain in compliance with SEC regulations and other regulations made in this regard.  

  1. What is EB–5 INTEGRITY FUND under the new rules?

Ans: Each regional centre is required to pay US $20,000 and US $10,000 (if the regional centre has less than 20 investors per year) in the EB–5 INTEGRITY FUND. An additional fee of US $1,000 per investor is required to be paid in addition to I -526 petition fees.  This fund will be used for the purpose of management, audit, investigation, site visits, investor awareness, maintaining the integrity of the program and monitoring compliance with the requirements under section 107 of the EB–5 Reform and Integrity Act of 2022.

  1. Do EB-5 direct and third-party promoters (migration agents overseas) need to meet any compliance requirement with USCIS and/or SEC?

Ans: Each regional centre will be required to register their marketing agents, migration agents and such other affiliates with USCIS with their contact details, any signed agreement and fees contract. Promoters will also be required to certify that they are in compliance with the guidelines for third-party promoters; promoting the EB-5 project in compliance with the guidelines provided for the project and also for the visa process.

  1. Are there any changes to the source of fund requirement?

Ans: Under new rules, the investor must demonstrate a legitimate source of funds not only for the investment amount but also for any administrative fees paid to the regional centre.

  1. What if my regional centre does not comply with US regulations and is sanctioned or closed down?

Ans: Under the new rules, if the foreign investor has made an investment in good faith in a regional centre and for any reason the regional centre is TERMINATED OR DEBARRED, it will not have an effect on the EB-5 petition of the foreign investor. The investor will not lose the priority date if the amendment to the business plan and removal of conditions is filed within 180 days of the notification received from the government for the termination of RC. 

  1. How will my money be invested in an EB-5 project?

Ans: The investment amount will be transferred to a separate account maintained by the regional centre. It will be transferred to the project only when it is certified by designated FUND MANAGERS (such as a public accountant, attorney, broker-dealer, investment advisors, etc.)

NOTE: In order to protect investors, various checks and balances have been introduced in the new EB–5 Reform and Integrity Act of 2022. Please refer to the full text of the Act for details.  

This is a very simplified FAQ for a general understanding of the new EB-5 Reform and Integrity Act. You are advised to refer to the complete text of the ACT or consult a qualified attorney for more information.

About Ajmera Law Group:

Ajmera Law Group (ALG) is an Indian law firm that assists Indian students and parents to plan for their or their child’s foreign education and subsequent settlement in a foreign country by offering various options including Residency and Citizenship by Investment and/or global investment.

 

July 4, 2023
July 4, 2023

Foreign Education Loan in India – A Boon or Bane?

Author By Prashant Ajmera Categories Canada, Express Entry of Canada, Immigration Consultants, Immigration Visa, Student Visa, Study Abroad & Planning

Foreign Education Loan in India – A Boon or Bane?

There are numerous government schemes, both at the central and state levels, that promote foreign education loans for Indian students aspiring to study abroad. Additionally, several major Indian banks are also offering favorable terms and conditions for these loans.

Recent data from the Reserve Bank of India (RBI) reveals that Indian parents have remitted a substantial amount of money for foreign education, indicating a growing trend. The total remittance includes fees for foreign education, financial gifts to children, and other expenses, amounting to a significant sum.

Given the increasing demand for foreign education, financial institutions are actively vying for a share of this market by providing education loans to Indian students.

However, it is essential to assess whether these loans are a blessing or a curse based on the success rate of Indian students in achieving their educational goals and the potential for career prospects and settlement abroad.

To understand the foreign education market, one must recognize that it is predominantly dominated by unregulated agents and consultants across India.

In the past, many Indian professionals who immigrated to various countries believed that studying abroad guaranteed a successful life. While this may have held true a decade or two ago, it is certainly not the case in 2023.

Historically, students primarily pursued master’s degrees abroad for a duration of one year at university-level institutions. During this period, the cost of education was manageable for families, and students often worked part-time jobs. After completing their master’s degrees, they were well-positioned to secure jobs, particularly in English-speaking countries like the USA and Canada.

However, the current trend in studying abroad extends beyond master’s degrees. Students now consider pursuing undergraduate studies, including postgraduate diploma programs, or enrolling in private colleges and universities. Unfortunately, many overlook crucial factors such as the cost of education, English language proficiency requirements, and relevant work experience in India.

Let’s consider an example of a typical middle-class Indian student aspiring to study abroad and settle in Canada or a similar country.

Several factors need to be considered:

  1. Foreign Education Cost Consideration: The cost of a typical four-year university education can range from 1 to 1.5 crores in terms of tuition fees and related expenses. This financial burden is often unaffordable or undesirable for many families. As a result, these students and parents are lured into pursuing the “foreign dream” by opting for private or semi-private colleges, which offer education similar to Indian polytechnic or diploma programs. The cost of education in such institutions ranges from 8 to 15 lakhs, significantly lower than that of universities.

 

  1. English Language Consideration: Many students aiming to study abroad face challenges with English language proficiency for various reasons. Consequently, the demand for English language classes has grown in India. Low scores in English language proficiency tests often hinder Indian students’ admission into university programs, whether they have completed their 12th grade or hold three or four-year bachelor’s degrees. These students are then redirected to the aforementioned private or semi-private foreign colleges.

 

  1. Rushing Abroad without Indian Work Experience: The prevalent belief that studying abroad guarantees a successful future has led students, parents, teachers, professors, and career counsellors to advise immediate relocation. Unfortunately, much of this advice fails to consider the crucial aspects of studying abroad, settling, and understanding the immigration rules of the respective countries.

Now, let’s examine the immigration systems of the three most popular destinations for studying and settling abroad: Canada, Australia, and New Zealand.

These countries’ immigration processes typically involve criteria and point-based systems. If applicants meet or exceed a certain score threshold, they become eligible for permanent immigration.

The criteria for permanent immigration generally include the following factors:

  1. Education in India and abroad
  2. Age
  3. Minimum 1 to 4 years of relevant work experience in India and abroad
  4. English language proficiency score
  5. Blood relatives residing in the respective countries
  6. Job offer from a company
  7. Spouse’s education, work experience, and fluency in the English language

The strong belief among Indian students and parents that studying abroad guarantees a successful life is often fuelled by unregulated agents and consultants. These agents promise low-cost education, admission with low English language proficiency scores, and no requirement for prior work experience in India.

Unfortunately, these three factors can lead to disastrous career outcomes for Indian students. They struggle to find employment related to their education, face challenges with English language proficiency, and realize that the courses they pursued are not in demand in their host countries. These factors collectively hinder their job prospects, immigration prospects, and ability to settle abroad.

Foreign education loans obtained from Indian financial institutions can become a curse rather than a blessing for students and parents. When students are unable to secure employment or immigration status in their host country their families in India are unable to repay the loan EMIs, which can result in financial hardship, leading to the loss of family property.

It is alarming to note that in the past 3-4 years, a significant number of Indian students in Canada have resorted to extreme measures such as suicide, falling victim to immigration fraud, or engaging in criminal activities due to the inability of their Indian families to support them.

Similarly, studying in the USA can lead to disappointment for many students as they face challenges in obtaining an H1B visa. Moreover, the waiting period for a USA green card for Indian students as of July 2023 is 12-20 years, and without an increase in the green card quota by the US government, this waiting time may further escalate.

Consequently, studying and settling abroad should be a decision made after carefully exploring ALL available options rather than rushing into a foreign country without considering the long-term implications.

About the Author:

The author of this article/blog is Prashant Ajmera, an Indian immigration lawyer and the founder of Ajmera Law Group. He has been a Canadian citizen for the past 30 years and is also the author of two books: “Millionaire of the Move” and “How to Plan for Your Child’s Foreign Education: Myth vs. Reality”.  He has been assisting and advising Indian businessmen to establish businesses in Canada since 1993.  Consult us