Selecting an EB-5 Attorney
It goes without saying that your lawyer should be responsive, conscientious, intelligent, and honest. But there are at least six other factors to consider before selecting an immigration attorney:
- Experience with EB-5 program.
- Experience as an immigration attorney.
- Experience with citizens of your country.
- Does not do legal work for Regional Centers.
- Role in handling your case.
- Time to prepare your case.
Many of the above factors are self-explanatory, but some commentary is noteworthy.
EB-5 Experience — There is no substitute for experience. It never ceases to amaze how an individual may choose a lawyer just because he happens to speak their language or because the lawyer is a great “salesman”. While language of course is important, it cannot be the primary factor. The most important consideration should be how much experience the lawyer has with the EB-5 program. A bunch of Johnny-come-lately lawyers have jumped on the EB-5 bandwagon as EB-5 has become popular. But EB-5 has been around for over 25 years, and your lawyer should be starkly aware of all the EB-5 problems and pitfalls of the 1990s so as to steer you away from them. Questions you should ask include whether your lawyer been recognized by his colleagues as EB-5 experts with invitations to speak at conferences? Has he or she been asked to writearticles on EB-5 for authoritative publications? How many cases has he personally overseen?
Immigration Law Experience — The same applies to immigration law experience. A one-dimensional lawyer only handling EB-5 cases may not be aware of many nuances relating to immigration law which may impact an EB-5 case, for example, the intricacies of what constitutes a material misrepresentation or a crime of moral turpitude. The issue of misrepresentation is particularly important as consular officers become more assertive in reviewing past visa applications. Will failure to indicate a daughter living in the US in a previous visa application form serve as a barrier to EB-5? Will a conviction for a drug (not a controlled substance) be an impediment to EB-5? How will the consul perceive a pop-up marriage (concluded after the approval of the EB-5 petition)? What is the lawyer’s track record in resolving delays at the visa issuance stage? How long has he or she been a member of the American Immigration Lawyers Association?
Country Experience — This leads to the next factor: experience working with citizens of your home country. If the lawyer has not worked on EB-5 cases on behalf of citizens from your country, he will not have the knowledge of local documentation or laws which may be required to handle your case. EB-5 implicates home country tax, financial, banking, real estate, and criminal laws. While the EB-5 lawyer need not be a specialist in home country laws, he will need to present information to the USCIS about those laws. For example, is the gift from the uncle to his nephew which served as the basis for the EB-5 investment taxable? Are there reporting requirements for the sale of real estate? Are there limitations on wire transfers abroad to invest in EB-5? What about the embassy where the visa interview will take place: does the lawyer have experience with that consular post? With whom will the lawyer contact if there is a problem?
Regional Center Representation — Of course, you want this experience to be channeled towards zealously representing your interests. This is more likely to be done if you retain a lawyer who does not also represent Regional Centers. Why? That lawyer is likely to refer you to his Regional Center clients. Of course, he may say — “well, I know them very well and they are a good Regional Center and there is no conflict of interest”, but the reality is, the Regional Center and project may not be so good, and there is a conflict of interest. What happens if USCIS raises a problem issue during your petition process and you wish to get your money back? What if the organizers of the Regional Center do not want to return your money? Or if the managers of the Regional Center project wish to change the terms of the escrow to release the funds to the borrower early, before USCIS makes a decision on your petition? On whose side will your lawyer be on?
The lawyer wants the Regional Center to refer to him clients: many potential investors contact a Regional Center first, with the Regional Center then referring the investor to the lawyer who handled the legal work in creating the Regional Center. Similarly, when a potential investor contacts the lawyer first, the lawyer refers the investor to the Regional Center which he helped to organize. In short, there is an unspoken quid pro quo between the Regional Center and the lawyer: you scratch my back, I’ll scratch yours. When deciding on a lawyer, the investor should be very aware of this.
This issue of unbiased interests crops up in the context of negotiating a discount of the administrative fee from the Regional Center. Many Regional Centers are willing to negotiate discounts of their administrative fees. But would a lawyer who represents the Regional Center go to bat for the client in helping to obtain a discount of an administrative fee? For example, we recently saved a client $45,000 “administrative fee” because of our policy not to represent Regional Centers nor accept referral fees. So instead of having to put up $545,000, the client only needed to invest $500,000. Not all Regional Centers will provide such a discount, but with the help of your lawyer, you may qualify.
Lawyer Role in the Case — Also keep in mind that just because the “name partner” signs the legal services agreement with you, that does not mean he will work on your case or be available to discuss your case or questions with you. He may assign it to a paralegal or interpreter or junior lawyer, without his oversight. Your everyday contact will be his paralegal or secretary. Do you really want someone else handling your case, particularly because the EB-5 process is now taking years to complete?
Case Preparation Time — Finally, the firm may be so big — dealing with dozens of cases on its “conveyor belt” — that it may take 3 months to put together and submit your case. We have had the unfortunate experience of working as co-counsel on an EB-5 case with one such firm.
Hopefully, the above overview will help you in selecting a good EB-5 attorney — someone who is most likely to assist you and your family obtain green cards. Contact us to discuss how we may be able to help you.