EB-5 Immigration Lawyers

  • Posted on March 9, 2020 | May 20, 2020 | 0 min read
Is working with an immigration lawyer required? Technically, the answer is no. An I-526 form is something a petitioner could fill out on his or her own. But while an attorney is not required to fill out or file an I-526 application, the process is much more complex than just a single form, and that’s the reason most EB5 Green Card investors wisely choose to work with an attorney. Complex documents, strict adherence to U.S. Citizenship and Immigration Services (USCIS) regulations, and ever-shifting policy interpretations make working without a good immigration lawyer an extremely risky proposition. A huge amount of money, time, and your dreams are at stake. So it pays to make sure you do it right the first time. The cost of a lawyer is a very small fraction of your investment amount; make sure you partner with an experienced and trustworthy immigration lawyer. Professional rules of conduct American lawyers are governed by rules that require a lawyer to place their clientʼs interests first and above all else. Beyond this, the rules also dictate a lawyer provide his or her client with service that is competent, diligent, and honest; and that lawyer must also be honest when dealing with USCIS and other relevant government agencies. Further, a lawyer must maintain confidentiality regarding their client communications. Supporting documents The EB-5 Green Card by investment program is regarded as one of the most specialized and demanding areas in not just the sphere of immigration law but all of U.S. law. It entails moving funds from one country to another in order to make an investment that is required to result in job creation. While an I-526 petition is just a few pages, the supporting documents for most EB-5 applications comprise hundreds or thousands of pages. Help with source of investment funds One of the most critical issues an EB-5 lawyer needs to deal with is the applicantʼs source of investment funds. Providing the right documentation that fulfills regulatory requirements demands knowledge of both the EB-5 program and the petitioner’s home country. Questions to ask a potential immigration lawyer It is advisable to do your due diligence on multiple lawyers before choosing to work with one. A critical question to ask is not only how long have they’ve worked in EB-5, and how many applicants have they represented, but what are their I-526 and I-829 approval rates? A good lawyer should not hesitate to share this information — or answer any questions you have. What an immigration lawyer should help with A worthwhile EB 5 immigration attorney will have the experience and insight to determine whether an applicant’s investment project is compliant with the most current EB-5 regulations and policies. While the questions on an application may seem relatively simple, the answers require a tremendous amount of program understanding. An EB-5 petition needs to provide evidence satisfying all of the program’s criteria including details regarding the lawful source of funds, a business plan, and job creation requirements. It is worth noting that the interpretation of USCIS regulations is often extremely complicated and a good lawyer will be invaluable in this regard. He or she will also be able to tell you what documentation you need to produce and guide you on all the forms and paperwork required by the EB-5 program. Also, while an immigration lawyer should not help you select your EB5 investment, they should be able to understand the job creation methodologies of that project to help determine that your investment will likely comply with EB-5 regulations. A good attorney will also be of service by asking you the right questions, such as which country was your spouse born in, as your petition may take advantage of faster processing times under certain circumstances. And while an immigration attorney is not usually qualified to advise you on investment selection, he or she should be able to address potential immigration risks and guide you to work with an EB-5 investment specialist or EB-5 tax specialist. Country-specific experience EB-5 investor applicants from different homelands will have different issues that need to be addressed, often regarding source of funds documentation — how capital was legally acquired can differ in different countries. A lawyer, ideally, should be familiar with both the laws of a petitioner’s homeland as well as USCIS EB 5 visa USA regulations. Ask if a lawyer and her firm has experience, and how much, working with applicants from your particular country. And inquire if their law firm has an office in your country. Ask about approval rates specific to your country. Communication Related to the issue of country-specific experience is that of communication. Successfully navigating the EB-5 process requires clear and effective communication between petitioner and legal counsel. If you are more comfortable discussing legal documents and matters in a language other than English, ensure your law firm of choice can satisfy this need. AILA Membership The American Immigration Lawyers Association (AILA) is the national association for immigration lawyers. Though it is not required that an immigration lawyer be a member of the association, the vast majority of experienced immigration lawyers are members. Understand a lawyer’s limitations A good immigration lawyer will have limitations to his or her experience and expertise and you should understand what they are. When a lawyer shares this with you, view such a disclosure as a positive that they are fulfilling their professional duties of being honest and protecting your interests. In general, while an immigration lawyer should be of valuable service in ensuring you comply with the immigration requirements of the USA Green Card program, know that in almost all cases an immigration lawyer is not qualified to guide you on choosing an appropriate regional center or project in which to invest your capital. Choosing an investment offering or EB5 regional center is a very sophisticated field of specialization beyond immigration law and requires the due diligence of a third party who specializes in evaluating EB-5 investments. Also know that a lawyer should not advise that an investment project or regional center is right for you because it resulted in success for another of their EB-5 clients. Regarding retrogression, the significant EB5 news is applicants from certain oversubscribed countries may be facing much longer processing times, thus requiring a longer-than-average sustainment of their investment. This is expertise outside the sphere of most immigration lawyers. A responsible attorney should advise you about whom to consult with in such a case. Does an immigration lawyer have interests besides your own? As a lawyer is bound to serve the interests of his or her client, they are required to consider if a client’s interests potentially conflict with the interest of another client, or even if there is a conflict with the lawyer’s own interests. Because the rules require fidelity to a clientʼs interests, professionally responsible counsel should carefully consider whether a conflict of interest could compromise their obligations to a potential client. An immigration lawyer should not be advising an EB-5 petitioner client on what investment to select. If a lawyer will receive compensation by the Issuer of an investment, this arrangement must be disclosed to a petitioner client. A lack of such a disclosure is unethical and most likely a breach of legal rules, and may be in violation of Securities laws. Before choosing your lawyer, be fully aware of whom that lawyer is serving. EB-5 is constantly evolving — is your immigration lawyer? EB-5 is not only a highly specialized immigration field but an ever-changing one. Not only do new regulations become implemented but the interpretations of older regulations have a history of shifting — and sometimes without official publication. Understand that mere “project approval” from USCIS is very limited and provides no guarantee of a petitioner’s application. And realize that USCIS may suddenly change its interpretations of even established regulations. A good immigration lawyer who stays current with developments in the industry is imperative. In EB-5 there are no guarantees Fundamental to the very nature of the EB-5 investment Green Card program is the concept of risk; in fact, it is a USCIS requirement that a petitioner’s investment be “at risk” throughout the petitioning process. Thus, no immigration lawyer should ever promise that you will receive your Green Card or the return of your investment capital. Again, good lawyers must be honest with their clients, and the truth of the matter is that no EB-5 outcome can ever be guaranteed. The cost of a good lawyer The cost of most EB-5 immigration lawyers is usually at least $15,000 (USD) and fees can go substantially higher, depending on a particular lawyer’s experience, firm and success rate. Once again, while your money is hard earned and should not be spent without careful consideration, understand that legal fees are just a very small portion of the overall capital you are investing. A good EB-5 lawyer is worth his or her weight in gold — or Green Cards.

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