The EB-5 immigration process is a complex area of immigration law, which requires in-depth knowledge of the statutes, regulations, and precedent decisions governing the EB-5 program, knowledge of USCIS’s current policies and interpretations of the statutes and regulations, and extensive experience from past EB-5 cases about how to handle complications that arise in connection with the investor’s source of funds or with the EB-5 project. Therefore, the attorney’s knowledge and experience in the EB-5 field, as well as his or her overall lawyering skills are of paramount importance.
Knowledge, Experience, and Skill
The success of the immigration process ultimately depends on how well the EB-5 project and how well the investor’s source of funds satisfy the immigration legal requirements. However, it comes down to the attorney’s skill in explaining and documenting convincingly to USCIS how the project and the investor’s source of funds satisfy the immigration legal requirements. Moreover, before it even reaches the point of preparing and filing the I-526 petition, the EB-5 investor relies on the attorney’s knowledge of the EB-5 field and experience in assessing the chances of success with the investor’s source of funds and with the EB-5 project that the investor is considering to invest in.
Commitment to Serving the Client’s Interests First
The attorney’s accountability and accessibility to the client, as well as his or her commitment to the client’s success and safety are also of crucial importance. Over the years, some attorneys become complacent and begin to take their clients for granted. In its milder form, this takes the form of not responding to clients’ calls or emails, and not answering the clients’ questions. In its more serious form, attorneys become focused on receiving finders fees from regional centers in addition to collecting legal fees from clients, and then the attorney might aim to refer clients to the regional center that pays the highest referral fee rather than by assisting the client to determine which regional center is safest for the client’s immigration process. Whether the attorney has ulterior financial motives contrary to the client’s interests is a factor to consider in selecting an attorney. One should also consider how promptly the attorney responds to the client’s calls and emails, as well as how thoroughly the attorney answers the client’s questions.
Communications with the Attorney
As previously mentioned, it is very important that the attorney communicate promptly with the client and answer the client’s questions thoroughly. It is also important that the attorney answers the client’s questions and explains the immigration process in a manner that the client understands. In other words, the attorney should not speak in legalistic terms that only other immigration attorneys would understand, but rather in terms that the average person can understand. At the same time, the attorney should never make you feel that your questions indicate ignorance or are unimportant. Instead, the attorney should assist you to become an informed consumer. Finally, if you feel more comfortable speaking a language other than English, the attorney should be willing to use interpreters or his own assistants who speak your native language in order to make sure that you understand important information that he or she is discussing with you. There are many immigration attorneys who are themselves bilingual or multilingual.
Thoroughness in Preparing the Case
Many small details of the client’s source of funds or the project’s operation and job creation methodology can make or break the client’s EB-5 case. Therefore, it is of crucial importance that the attorney examine the investor’s source of funds throughly to make sure that no questions will arise as to its legality or that the trail of funds can be clearly documented. Beyond the source of funds, it is also important that the attorney determine whether the client or the client’s family members could be denied in the immigration process due to past criminal convictions, past immigration violations in the U.S., use of illegal drugs, association with any groups that pose a security threat to the U.S., Communist party membership, among others. Also, USCIS looks to see if the investor has been the target of administrative proceedings by government authorities or of civil litigation by private parties, either of which would be indicative of the investor having engaged in illegal or fraudulent activities that have given rise to such legal actions against the investor. Finally, the attorney must examine carefully the project’s compliance with all immigration legal requirements, in particular, how it will prove sufficient job creation at the I-526 and I-829 petition stages. The EB-5 investor must be sure that the attorney will “go the extra mile” in handling the client’s case in the most thorough, carefully thought out, and safest manner possible.
Does the Attorney’s Location Matter?
When applying for permanent residence through the EB-5 immigrant investor program, it does not matter where the investor’s immigration attorney is located. Under the EB-5 program, there is no possibility for in-person submission of documents or presentation of the case to USCIS. Instead, immigration attorneys prepare petitions with supporting documents, and ship those documents to the USCIS office that adjudicates the petitions. The same is true of the process through U.S. consulates abroad. Pretty much no consulate nowadays allows for immigration attorneys to attend interviews, and even if they do allow attendance, the consular officers are not interested to hear explanations from the attorney, but rather from the investor directly.
Some EB-5 investors like the comfort and convenience of walking into the immigration attorney’s office. While this might facilitate face-to-face communication and the dropping off of documents in-person, it does not really improve the chances of success in the immigration process. The main factors in the attorney-client relationship that maximize the chances of success are 1) the attorney’s knowledge, experience, and skill, 2) thoroughness in preparing the investor’s case, 3) the quality of communications and cooperation between the attorney and client, and 4) the quality of cooperation with the regional center.
Good Cooperation among the Attorney, Client, and Regional Center
The EB-5 process cannot succeed based on the attorney’s work alone. First of all, the client needs to disclose to the immigration attorney any arrests, convictions, administrative proceedings or civil litigation against him or her, since these can adversely impact the client’s EB-5 case, and so the attorney needs to know about them in order to assess the potential impact on the case. The attorney needs the complete cooperation of the client in disclosing the information and documentation that the attorney considers useful and necessary for proving the legal source of the client’s funds.
The same holds true for the regional center, namely that the regional center needs to provide the documentation that the attorney considers useful and necessary for, among other things, demonstrating that the regional center’s project will create at least 10 jobs per investor; explaining how the project will spend all funds from EB-5 investors in the job-creating business activity, and will do so without providing any guaranty or redemption option; establishing the credibility of the project and its likelihood to achieve successfully the stated business objectives; documenting that the business is located in a Targeted Employment Area (TEA), which qualifies the EB-5 investors based on an investment of $500,000; and confirming that the project will operate in the geographic area and in an industry that were approved for the regional center, and will use the economist model and job creation methodology that the regional center was approved to use.
Aside from choosing the best qualifying regional center and project, the selection of the right immigration attorney is crucial to the investor’s success in the EB-5 immigration process. The investor should evaluate the immigration attorney to ensure that he or she has the skills, experience, knowledge, honesty, and ethical rectitude discussed above. At the same time, the investor must be prepared to give the immigration attorney his or her full cooperation, honesty, and openness in order to succeed in the immigration process because the immigration attorney cannot succeed without having sufficient documentation from the investor and without knowing all of the investor’s circumstances that could adversely affect the case. It is important for the investor to volunteer all remotely relevant information, and let the immigration attorney determine whether it is relevant or important for the case.