Step 3: Which Regional Center?
Role as Lawyer: Limit advice to immigration law.
Draft your legal services agreement to limit due-diligence assistance to immigration issues. Recommend
tax and financial advisors, in writing, but expect many
(but not all) clients to decline your advice to seek outside help.
Finder's Fees: Accepting a finder's fee might be allowed under ethics rules with adequate disclosures, but
they are almost certainly not acceptable under U.S. securities laws. (You have been warned.) See also "The
Intersection of Securities Law and EB-5 Investor Practice," Vol. 2, Issue 2 of AILA's Inside Immigration Series.
Associating with EB-5 Co-Counsel: Many regional
centers will not let you file the I-526 petition for your
client who invests with them. Most require co-counsel
to prepare—or at the very least review—the I-526. You
can save face by explaining to the client that although
you are an expert in immigration law, EB-5 is one of
those specialized areas in which specialist-technician
types must file the cases, but you will still be the one to
obtain the client's green card—the most important part.
Step 4: Find the Source of Funds
Unless there is a serious age-out problem, require the
client to postpone wiring the money to the EB-5 entity
until you can confirm the lawful source of funds and
their path to the United States. Some sources of EB-5
investment funds are much easier to prove than oth-
ers. Select the source that is the easiest to document.
For example, sale or leverage of older, appreciated
real estate is typically easier than other sources. Adjudicators frequently take the position that a client's payment/nonpayment of home-country tax is not USCIS's
priority. (Tax returns showing a sufficiently high level
of earnings can still be valuable in confirming the lawful source of the underlying income.) You need to trace
funds carefully from the source to the United States.
Hindrances can be either home-country regulations
(e.g., currency export restrictions in China, India, etc.)
or U.S. regulations (e.g., Office of Foreign Assets Control issues for investors from Iran, Syria, etc.). Be careful advising clients on how to achieve compliance. Seek
co-counsel if necessary.
Step 5: Prepare/File I-526 Petition
In all EB-5 cases, you must provide everything relevant to the investor, as well as the lawful source and
path of the EB-5 investment funds. Document everything very carefully and organize and annotate evidence as needed to clarify why the documents are useful for the adjudicator to consider.
The work needed to prepare the entity-related portion of an I-526 petition can vary greatly. In a "direct"
EB-5 case, you typically will have to assist the investor
with documenting the EB-5 entity's business plan and
progress. In regional center cases, the regional center
(or a related entity) will provide the project-related
2014 AILA Midyear/Winter CLE
Strategies in Advising and Processing Entrepreneur
& Investor Visas
January 24, 2014