What an Immigration Attorney Can Properly Explain
An experienced EB-5 immigration attorney may be able to provide valuable project-related observations from an immigration-law perspective.
The attorney may review whether:
- The regional center appears properly designated;
- The project has filed Form I-956F;
- The offering includes a business plan and economic report;
- The job-creation methodology is explained;
- The project documents are available for the I-526E filing;
- The NCE and JCE structure is clear;
- The offering contains immigration-related risk disclosures;
- The project team has a process for supporting I-829 petitions;
- The documents appear consistent from an immigration perspective.
An attorney who has worked with many EB-5 projects may also know which regional centers are responsive, which project teams provide organized documentation and which offerings have previously generated common USCIS questions.
This practical experience can be useful.
However, it is different from recommending that the investor purchase a particular security because it is financially suitable or commercially superior.
Immigration Review Is Not Investment Due Diligence
A project may have strong immigration documentation but weak commercial economics.
For example:
- The economic report may show sufficient projected jobs, but construction financing may not be fully committed;
- The I-956F filing may be complete, but the developer may have limited experience;
- The project may qualify as rural, but the exit strategy may depend on uncertain refinancing;
- The offering may have a large job cushion, but the EB-5 loan may be in a weak capital-stack position;
- The regional center may be experienced, but the specific developer may have financial problems.
An immigration attorney can review how a project supports the immigration petition. That does not necessarily mean the attorney has verified the project budget, appraised the collateral or analyzed market demand.
Investors should not treat immigration-document review as a complete statement that the investment is safe.
Why Compensation Matters
The most sensitive issue is whether the attorney receives compensation for introducing or recommending the project.
The SEC has brought enforcement actions involving attorneys who allegedly received transaction-based compensation for recommending and facilitating EB-5 securities investments without proper broker registration.
The concern is not only registration. It is also the attorney’s duty to the client.
An immigration attorney is expected to represent the investor’s legal interests. If the attorney is paid by the project selected by the client, that compensation may create a conflict.
The investor should ask directly:
- Do you receive any payment from this project?
- Is the payment fixed or based on my investment?
- Does the regional center reimburse any of my legal fees?
- Are you associated with a broker-dealer?
- Are you acting as my immigration lawyer, a placement agent or both?
- Will the compensation arrangement be disclosed in writing?
A professional should be willing to answer these questions clearly.
Can the Attorney Provide a Project List?
Providing a list is not necessarily the same as recommending one specific investment.
An attorney may say:
“These are projects for which our firm has reviewed immigration documents.”
That may be useful, but the investor should ask:
- How were the projects selected?
- Does the firm work with all projects or only certain ones?
- Does inclusion mean the project passed financial due diligence?
- Is the attorney paid if the investor chooses one?
- Are projects outside the list also acceptable?
- Is this a legal review or an investment recommendation?
The investor should not assume that every project on an attorney’s list has been fully evaluated for financial risk.
What About an Attorney Who Is Also Associated With a Broker-Dealer?
An attorney may have another professional role. For example, an attorney could potentially be properly registered or associated with a broker-dealer.
However, the roles should be clearly separated and disclosed.
The investor should know:
- In which capacity the attorney is speaking;
- Which entity is providing the recommendation;
- What duties apply;
- Who is paying compensation;
- Whether the legal representation is independent;
- Whether confidential legal information will be used or shared.
The title “attorney” should not be used to create the impression that a securities recommendation has a special government or legal guarantee.
Questions Your Attorney Can Help Answer
An immigration attorney is the right person to ask:
- Does this project provide the documentation needed for my I-526E?
- How does the I-956F filing affect my petition?
- Does the job-creation structure appear consistent with EB-5 requirements?
- What happens to my petition if the project changes?
- What project documents may be needed at I-829?
- How are denial refund provisions described?
- What immigration risks are disclosed?
- How might redeployment affect my immigration case?
Questions That May Require Another Professional
A financial or project professional may be more appropriate for questions such as:
- Is the property valuation reasonable?
- Is the developer financially strong?
- Is the EB-5 loan adequately secured?
- Is the senior debt too large?
- Is the projected revenue realistic?
- Is refinancing likely?
- Is the investment suitable for my financial situation?
- What is the probability of receiving my capital back?