Choosing the Right EB-5 Lawyer: A Roadmap to 'Green Card' Success
The Employment Based Fifth Preference(EB-5) Immigrant Investor Visa Program was introduced to help boost the U.S. economy. The EB-5 Program encourages job creation through capital investments by foreign investors helping them acquire a Green Card and subsequently permanent U.S. residency.The H-1B visa has long been the first choice for many Indians seeking employment and permanent relocation to the U.S. However, it has its own set of complications as it is dependent on a lottery system and sponsorship opportunities by employers. The EB-5 visa, on the other hand, allows a foreign immigrant to invest a minimum amount of $500,000 (Rs.3.22 crore) in the U.S. economy. This investment enables the individual to not only procure a green card for themselves but also for their immediate family (spouse and unmarried children under the age of 21).
The process for procuring an EB-5 green card is complex and requires regular assistance from qualified and dedicated EB-5 attorneys. Choosing the best EB-5 lawyer can get tedious as the services offered and the fee charged can vary. The key here is to find EB-5 lawyers that provide end-to-end services, the right representation and the ability to file a successful EB-5 application.
To select the best EB-5 attorney one must ask a set of crucial questions and compare the responses of different EB-5 lawyers before settling on one. The most crucial questions that an applicant MUST ask are:
• What are the education, legal background, training, experience and specialization of the lawyer?
It is necessary to choose an attorney with EB-5 visa expertise. It is a niche field and not many attorneys file EB5 visa petitions. Among those who do,it is also important for them to understand the laws of the country where the funds originate from. Also, the attorney should be aware of the remittance laws of the country from where the funds are being remitted. It is recommended that the law firm, an investor works with has dual qualified and multilingual attorneys to deliver flawless services to the investors.
• How many Indian EB-5 applications does the lawyer file yearly and monthly?
Lawyers can some times claim to have a great deal of experience with Indian EB-5 applications, but the truth is that only a handful of Indian EB-5 applications are filed each year. Asking for a specific number of monthly and annually filed applications would enable the client to get a clear picture of the lawyer’s experience. For India,a good number will be 35 applications per year which will result in around 100 green cards once approved (close to $20 million in investment).
• What kind of EB-5 applications does the lawyer file every year?
EB-5 visas can be applied for in two ways -by starting one's own business or investing in a project promoted by a government approved regional centre. The application criterion and process for both the routes vary in great detail .There fore, it is crucial for an applicant to know what kind of application the lawyer specializes in and then compare it with their own application needs. While a regional centre application requires knowledge of U.S.immigration and local laws of the country where the funds originate, a direct EB-5 investment additionally requires knowledge of corporate law for structuring the enterprise and drafting a comprehensive business plan.
• Is the lawyer monetarily connected with any regional center/third party connected with the EB-5 investment?
It is illegal,unethical and a conflict of interest for lawyers to get kickbacks or referral fees from regional centres. The reason behind this payment is to manipulate lawyers into referring the particular regional centre. This question is crucial because ideally the attorney should only be paid by the applicant and no one else and no referral fees should be given. If an attorney is getting compensated by a regional centre, it is highly unlikely that they will perform the due diligence in an unbiased manner.
• Does the lawyer represent the regional center on the chosen project/any other matter?
Some law firms/lawyers may represent the regional center on a specific project and also the investor. This may create a direct conflict of interest for an applicant's representation and is not advised. As mentioned earlier, attorneys need to do due diligence on the project. If an attorney has drafted the project paper work and also represents client, they are getting compensated to perform due diligence on their work product.
• Experience of the Lawyer in representing their client in Loan Reviews and other structured financial matters
EB-5 investments through a regional center can involve complex financial agreements such as partnership, loan, subscription and inter creditor agreements. Most lawyers who specialise in EB-5 lack any experience in finance law and as a result may be unable to identify or evaluate the risks involved. There fore,it is essential to understand the exposure of the selected lawyer in dealing with complex structured financial issues.
• Does the lawyer understand the direct EB-5 Business Plan/a regional center's economic model?
The business plan is the most crucial aspect of a direct EB-5 application. We believe it is not possible for a lawyer to file a good EB-5 application without an in-depth knowledge of the business plan and the client's business because the lawyer needs to explain to the government how the applicant's business plan will satisfy all the requirements of an EB-5 visa application.
Secondly,for a successful EB-5 application it is necessary that the investment made through a regional center create ten American jobs,therefore it is necessary for a lawyer to have a strong understanding of the economic model of the regional center project so that they can appraise an applicant of the risks in their application.
• Scope of Work & Fee Structure
Every lawyer/law firm processes EB-5 applications differently. These variations result in a difference in the time spent on each project. Thus, it is crucial to understand the scope of work that the lawyer would undertake in the fee charged by them.It is very important to keep note that a lawyer/law firm shouldn't be accepting any kind of monetary/in kind payments from a regional center.
EB-5 visas can be applied for in two ways -by starting one's own business or investing in a project promoted by a government approved regional centre. The application criterion and process for both the routes vary in great detail .There fore, it is crucial for an applicant to know what kind of application the lawyer specializes in and then compare it with their own application needs. While a regional centre application requires knowledge of U.S.immigration and local laws of the country where the funds originate, a direct EB-5 investment additionally requires knowledge of corporate law for structuring the enterprise and drafting a comprehensive business plan.
The business plan is the most crucial aspect of a direct EB-5 application, as it is not possible for a lawyer to file a good EB-5 application without an in-depth knowledge of the business plan and the client’s business
• Is the lawyer monetarily connected with any regional center/third party connected with the EB-5 investment?
It is illegal,unethical and a conflict of interest for lawyers to get kickbacks or referral fees from regional centres. The reason behind this payment is to manipulate lawyers into referring the particular regional centre. This question is crucial because ideally the attorney should only be paid by the applicant and no one else and no referral fees should be given. If an attorney is getting compensated by a regional centre, it is highly unlikely that they will perform the due diligence in an unbiased manner.
• Does the lawyer represent the regional center on the chosen project/any other matter?
Some law firms/lawyers may represent the regional center on a specific project and also the investor. This may create a direct conflict of interest for an applicant's representation and is not advised. As mentioned earlier, attorneys need to do due diligence on the project. If an attorney has drafted the project paper work and also represents client, they are getting compensated to perform due diligence on their work product.
• Experience of the Lawyer in representing their client in Loan Reviews and other structured financial matters
EB-5 investments through a regional center can involve complex financial agreements such as partnership, loan, subscription and inter creditor agreements. Most lawyers who specialise in EB-5 lack any experience in finance law and as a result may be unable to identify or evaluate the risks involved. There fore,it is essential to understand the exposure of the selected lawyer in dealing with complex structured financial issues.
• Does the lawyer understand the direct EB-5 Business Plan/a regional center's economic model?
The business plan is the most crucial aspect of a direct EB-5 application. We believe it is not possible for a lawyer to file a good EB-5 application without an in-depth knowledge of the business plan and the client's business because the lawyer needs to explain to the government how the applicant's business plan will satisfy all the requirements of an EB-5 visa application.
Secondly,for a successful EB-5 application it is necessary that the investment made through a regional center create ten American jobs,therefore it is necessary for a lawyer to have a strong understanding of the economic model of the regional center project so that they can appraise an applicant of the risks in their application.
• Scope of Work & Fee Structure
Every lawyer/law firm processes EB-5 applications differently. These variations result in a difference in the time spent on each project. Thus, it is crucial to understand the scope of work that the lawyer would undertake in the fee charged by them.It is very important to keep note that a lawyer/law firm shouldn't be accepting any kind of monetary/in kind payments from a regional center.
