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.
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 provides 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.
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.
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.
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.
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
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
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.
EB-5 investor applicants from different homelands will have different issues that need to be addressed, often regarding the 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 the 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.
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.
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.
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 EB5 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 within such a case.
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 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 maybe in violation of Securities laws. Before choosing your lawyer, be fully aware of whom that lawyer is serving.
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.
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 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.
Beverly Hills, California, United States
Houston, TX, United States
Miami, FL, United States
Mercer Island, WA, United States
Washington, DC, United States
Orlando/Maitland, FL, United States
Bethesda, MD, United States
Costa Mesa, CA, United States
Fort Lauderdale, FL, United States
Philadelphia, PA, United States
Rockville, MD, United States
Scottsdale, AZ, United States
By GCBI Team
Restructuring your NCE operating documents for redeployment
Investor options with troubled projects
By GCBI Team
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