Choosing an EB-5 immigration attorney is one of the first major decisions an investor makes. For many Chinese and Indian families, the EB-5 process involves several layers of complexity at the same time:
- A large international transfer;
- Detailed source-of-funds documentation;
- A private investment;
- A long immigration timeline;
- Visa availability;
- Family planning;
- Adjustment of status or consular processing;
- A future I-829 petition.
Investors should also understand what an immigration attorney normally does not guarantee.
1. Initial Eligibility and Strategy Review
Before the investor selects a project or transfers money, the attorney should review the investor’s basic circumstances.
This may include:
- Nationality and place of birth;
- Current U.S. immigration status;
- Previous visa or immigration history;
- Family members who may immigrate as derivatives;
- Children’s ages and possible Child Status Protection Act considerations;
- Source and location of investment capital;
- Timing goals;
- Whether adjustment of status or consular processing may apply;
- Possible legal or immigration concerns.
For investors from countries with significant EB-5 demand, visa availability and category selection may also affect planning. The attorney should explain these issues without promising an exact green-card date.
2. Source and Path of Funds Planning
This is one of the attorney’s most important responsibilities. The investor must show that the EB-5 capital came from lawful sources. Depending on the case, the source may include:
- Salary and savings;
- Business income;
- Sale of real estate;
- Sale of company shares;
- Gifted funds;
- Inheritance;
- Investment earnings;
- A loan secured by the investor’s assets;
- Retirement funds;
- A combination of several sources.
The attorney should identify which documents are needed and explain how the funds moved from the original source to the EB-5 investment account. This is often called the path of funds.
For Chinese investors, documentation may involve foreign-exchange controls, multiple remitters, property-sale records, business ownership documents or historical tax evidence.
For Indian investors, the process may involve bank records, tax returns, property transactions, gifts, business distributions and compliance with outward-remittance requirements. The attorney should help organize the story clearly rather than simply collecting documents without explanation.
3. Review of Personal Documentation
The attorney may review and organize:
- Passports;
- Birth and marriage certificates;
- Tax returns;
- Employment records;
- Bank statements;
- Business documents;
- Property-sale agreements;
- Loan documents;
- Gift agreements;
- Evidence of inheritance;
- Currency-conversion records;
- Transfer receipts;
- Civil and immigration records.
Where documents are not in English, certified translations may be required. A strong attorney should identify missing links before filing instead of waiting for USCIS to request them later.
4. Project-Document Review From an Immigration Perspective
The immigration attorney should review the project package to determine whether the documentation needed for the investor’s I-526E petition appears available.
The attorney may review:
- Regional center information;
- Form I-956F receipt or approval;
- The business plan;
- Economic report;
- PPM;
- Subscription agreement;
- NCE documents;
- Loan or equity structure;
- TEA or rural-area evidence;
- Job-creation methodology;
- Immigration-risk disclosures;
- Denial refund terms;
- Redeployment language.
The attorney’s review is normally focused on immigration eligibility and documentation. It is not automatically a full financial due-diligence review.
5. Preparation and Filing of Form I-526E
For a regional center investor, Form I-526E is the main investor petition. The attorney should prepare the petition package, which may include:
- Completed forms;
- Personal identification documents;
- Source-of-funds evidence;
- Path-of-funds evidence;
- Project documents;
- Legal explanations;
- Supporting exhibits;
- Filing-fee documentation.
The attorney should also provide the investor with a copy of the final filing and USCIS receipt notice.
6. Responding to USCIS Questions
USCIS may issue a Request for Evidence, or RFE, seeking more information. In more serious situations, USCIS may issue a Notice of Intent to Deny.
The attorney should:
- Explain what USCIS is asking;
- Identify whether the issue is personal or project-related;
- Request documents from the investor or project team;
- Prepare the legal response;
- Submit the response within the deadline;
- Keep the investor informed.
The attorney cannot guarantee that USCIS will approve the response, but should provide a clear strategy.
7. Adjustment of Status or Consular Processing
Approval of Form I-526E does not by itself complete the entire green-card process.
Depending on the investor’s situation, the next stage may involve:
- Form I-485 adjustment of status in the United States; or
- DS-260 immigrant visa processing through a U.S. consulate.
The attorney should advise on eligibility, timing, documentation, medical examinations, travel and work authorization where relevant.
For consular cases, the attorney should help the investor prepare for the interview and understand what documents to bring.
8. Advising During Conditional Residence
After obtaining conditional permanent residence, the investor enters the two-year conditional-residence period.
The attorney should explain:
- Travel and residence considerations;
- Maintaining permanent-resident status;
- Changes of address;
- Family-related issues;
- The expected I-829 filing window;
- Why project updates should be retained.
The attorney may not monitor the commercial project every day, but should communicate with the regional center or project team when immigration-related developments affect the case.
9. Preparing Form I-829
Form I-829 is filed to remove conditions from permanent residence.
At this stage, the investor generally needs evidence concerning:
- The investment;
- Sustaining the investment for the applicable period;
- Job creation;
- Project expenditures or operations;
- The investor’s conditional residence;
- Relevant project changes.
The regional center, NCE and JCE normally provide much of the project evidence. The attorney organizes that evidence and connects it to the investor’s petition.
This is why investors should choose a lawyer who plans beyond I-526E. EB-5 does not end when the first petition is approved.
What the Attorney Does Not Normally Guarantee
An immigration attorney should not guarantee:
- Approval of I-526E;
- Visa availability by a particular date;
- Project completion;
- Ten jobs per investor;
- Return of capital;
- A specific investment return;
- Approval of I-829;
- U.S. citizenship.
The attorney also may not be responsible for performing financial due diligence unless this is clearly included in the engagement and the attorney is qualified to provide it.
Questions to Ask Before Hiring
I suggest asking:
- How many EB-5 investors have you represented?
- Do you regularly handle Chinese or Indian source-of-funds cases?
- Will you represent me through I-829?
- Who will work on my case?
- How often will I receive updates?
- Do you review project documents?
- Is that review immigration-only or also financial?
- Do you receive referral fees from projects?
- What services are included in the legal fee?
- Are RFE responses included?
- Are adjustment of status, consular processing and I-829 charged separately?
- What happens if I change projects or attorneys?