Legal Experience & Training
- How Many Indian EB-5 Applications Does the Lawyer File Each Year?
Each Month?
- What types of EB-5 Applications Does the Lawyer File?
Conflicts of Interest
- Does the Lawyer Accept any Payment from Regional Centers? Or Will
They Receive any Payment from any Other Party Connected with the EB-5 Investment?
- Does your Lawyer Represent the Regional Center on the
Project?
- Does the Lawyer Represent the Regional Center on Any Other
Matter?
Loan Structure and Lending Risk
- Has the Lawyer Represented Clients in Loan Review and other Structured
Finance Matters?
- Will you Need Additional Specialized Legal Representation?
- Is the Lawyer an AILA Member?
- What Are the Legal Training, Background and Specializations of the
Lawyer?
- Country Specific Experience: Is a Lawyer Aware of the Unique Issues in
Your Country?
Business Experience
- Does Your Lawyer Understand the Business Plan?
- Does Your Lawyer Understand the Regional Center’s Economic
Models?
Pricing
- What Is the Scope of Work that Your Fee Covers?
- Who May Apply for EB-5?
- How Long Does It Take for an EB-5 Applicant to Get a Conditional
Green Card?
- What Is the Minimum Amount of Investment Required?
- What Is a “Targeted Employment Area?”
- Must the Entire Amount of the Investment Be Made at the Time of
Applying for an Immigrant Visa?
- When Must the Employment Be Created?
- Can I Use Retained Earnings as Investment for EB-5 Visa?
- Can I Use the Money Gifted by a Parent or Other Relative for an
EB-5 Investment?
- What Is a "Conditional" Green Card?
- What Are the Conditions for Removal of Conditions (I-829)
Approval?
- Where Are EB-5 Regional Centers Located?
- When Does the Period for Continuous Residence for Naturalization
Begin?
- What Documents Must I Prepare to Process My Investor Green Card
Petition?
- What Are the Ways an EB-5 Investment Can Be Funded?
- What Portion of an EB-5 Investment Can Be Loan Proceeds?
- Where Can Employees in an EB-5 Business Be Located?
- How Many Projects Do EB-5 Regional Centers Offer?
- When Is the U.S. Residence of an EB-5 Investor Guaranteed?
- Does the Child Status Protection Act Apply to the EB-5
Program?
- What Is the Process for Applying for EB-5 Visa?
Legal Experience & Training
How Many Indian EB-5 Applications Does the Lawyer File Each Year? Each
Month?
While many lawyers claim experience with EB-5 applications the truth is that most lawyers only file a
handful of EB-5 applications each year, if any. Asking how many EB-5 applications your lawyer files
each month can be a highly informative question.
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What
types of EB-5 Applications Does the Lawyer File?
The overwhelming majority of EB-5 cases are Regional Center cases. “Direct” EB-5 cases
have different requirements and require lawyers with different experience sets. How much experience
does the lawyer have with Direct and Regional Center Cases?
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Conflicts of Interest
Does the Lawyer Accept any Payment from Regional
Centers? Or Will They Receive any Payment from any Other Party Connected with the EB-5 Investment?
Unfortunately, it is still common for lawyers to receive compensation from Regional Centers for referring clients. These payments are designed to induce lawyers to recommend particular Regional Centers.
Key point: Your lawyer should ONLY be paid by you and should not receive referral fees for suggesting particular Regional Centers.
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Does your Lawyer Represent the Regional Center on the Project?
A lawyer or their law firm may represent the Regional Center on a project. This is a direct conflict of interest to your representation.
Here is why this matters:
- The Regional Center is usually the General Partner of the entity established to funnel investors’ funds to the project.
- That General Partner has legal responsibilities to its investors, in return for which it receives compensation.
- Your EB-5 lawyer needs to negotiate with the Regional Center on your behalf — and potentially bring legal action against them if things go wrong.
Some law firms act both as Regional Center counsel and as lawyer to the investors. Our firm believes this creates an unacceptable conflict of interest and will never position itself in such a compromised position.
Ask your lawyer: Are they, or their law firm, in any way connected to the law firm providing advice to the Regional Center on your project?
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Does the Lawyer Represent the Regional Center on Any Other Matter?
Even if a lawyer does not represent a Regional Center on your specific project, they may still represent that Regional Center on other projects. This can also create a conflict of interest.
Ask yourself:
- If a Regional Center is a significant “repeat client,” how aggressively will the lawyer negotiate against that client’s terms on your behalf?
- Would a lawyer who earns large fees from a Regional Center sue that same Regional Center on behalf of an investor?
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Loan Structure and Lending Risk
Has the Lawyer Represented Clients in Loan
Review and other Structured Finance Matters?
Regional Center EB-5 applications can involve complex documents, including:
- Partnership Agreements
- Loan Agreements
- Subscription Agreements
- Inter-creditor Agreements
As an EB-5 investor lending to a project, your position raises the same issues of lending and finance law as any other loan or investment. No lender would enter a loan transaction without an experienced lending lawyer reviewing the documents — neither should you.
Unfortunately, most EB-5 lawyers lack training in finance law and may be unable to identify lending-related risks. Ask your lawyer about their training and experience with complex structured finance work.
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Will you
Need Additional Specialized Legal Representation?
If your EB-5 lawyer does not have meaningful structured finance experience, consider also hiring:
- A finance or lending lawyer to advise on loan structure and risks
- A tax consultant for tax-related implications
Your EB-5 lawyer will handle the basic documentation and “immigration due diligence,” while your lending lawyer advises on the financial structure.
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Is the
Lawyer an AILA Member?
AILA is the American Immigration Lawyers Association and is the professional association for lawyers
that practice immigration law. While there is no legal requirement that immigration lawyers be members
of AILA the overwhelming majority of experienced immigration lawyers are AILA members.
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What Are
the Legal Training, Background and Specializations of the Lawyer?
In most countries, simply obtaining a law degree and passing the bar exam is insufficient for a license to practice law unsupervised. However, in most U.S. states there is no practical training requirement — a lawyer can assist EB-5 clients immediately after passing the bar.
What many clients do not realize:
- Neither the bar exam syllabus nor most U.S. law school curricula cover the EB-5 program
- A lawyer assisting EB-5 clients may have never received any EB-5-specific training
EB-5 lawyers at Davies & Associates have received post-bar training at some of the world’s largest law firms and are well equipped to assist clients.
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Country
Specific Experience: Is a Lawyer Aware of the Unique Issues in Your Country?
The EB-5 program has requirements that raise country-specific issues. The paramount concern is tracing the investor’s source of funds.
Why country-specific expertise matters:
- The ways funds can be lawfully earned varies by country
- What is considered acceptable local practice differs significantly
- Knowledge of local law and the USCIS attitude to those specific country issues is essential
Davies & Associates employs experienced EB-5 lawyers who are also licensed to practice law in other countries. In certain countries, we maintain a local presence staffed with lawyers who assist directly with country-specific issues.
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Business Experience
Does Your Lawyer Understand the Business Plan?
The central piece of a Direct EB-5 application is the business plan. A lawyer cannot competently file an EB-5 application without a solid understanding of the business plan and the client’s business.
Your lawyer needs to explain to the U.S. government how the business plan satisfies the legal requirements for I-526 and I-829 approval.
Davies & Associates brings unique qualifications to this task:
- EB-5 lawyers with 15+ years of legal practice experience
- Lawyers who hold MBA degrees from major universities, including the Wharton School of Business
- Experience advising on business plans with major global consulting firms
We visit our clients to ensure we understand their business. Does your lawyer?
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Does Your Lawyer Understand the Regional Center’s Economic Models?
Regional Centers employ economic models to predict job creation. These models come under intense scrutiny from USCIS at two critical points:
- When the initial I-526 is filed
- Two to three years later, when form I-829 is filed
If you are applying through the Regional Center program, your green card approval depends on the long-term validity of the economic model used.
While lawyers are not economists, your EB-5 lawyer should have sufficient understanding of the economic model to appraise you of the risks in your application.
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Pricing What Is the Scope of Work that Your Fee Covers?
The full scope of work for an EB-5 visa includes:
- All legal immigration work related to the I-526 and I-829 forms including drafting, organizing and
filing the forms and supporting documentation
- Source of Funds Assessment
- Loan/Structures Finance Review
- Legal review and assessment of the Partnership Agreement, Subscription Agreement and all Loan
Documents for immigration risks
- Corporate review of the Private Placement Memorandum for legality and consistency with the other
deal documents Different law firms have different processes for handling EB-5 applications.
These different process results in very substantial variations on terms of the time spent on each
project. In addition, some lawyers accept part of their payment from the Regional Center. This clearly
impairs a lawyer’s impartiality and creates an unacceptable conflict of interest.
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Who
May Apply for EB-5?
Anyone can apply for an EB5 visa who is not disbarred from entering United States. There are no
language or educational qualifications required. An applicant should have lawful and explainable
source of funds.
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How
Long Does It Take for an EB-5 Applicant to Get a Conditional Green Card?
It takes around 12 to 16 months to get a conditional green card from the date of filing of the
application for conditional green card (form I-526).
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What
Is the Minimum Amount of Investment Required?
For investments in areas other than “targeted employment areas,” the minimum amount of
investment is $1,050,000. Investments in “targeted employment areas,” including approved
regional centers, can qualify with a minimum of $800,000.
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What
Is a “Targeted Employment Area?”
A targeted employment area is a rural area or a geographical area that has experienced unemployment
at a rate of at least 150% of the national average rate.
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Must
the Entire Amount of the Investment Be Made at the Time of Applying for an Immigrant Visa?
The entire amount of the investment need not have been made at the time of applying for an immigrant
visa. However, the investor must prove availability of the funds and an actual commitment of the
required amount of capital. Investor must also produce a business plan explaining how the funds will
be invested and jobs created.
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When
Must the Employment Be Created?
The required 10 jobs must be created within the two- year period immediately following the investor
becoming a permanent resident.
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Can I
Use Retained Earnings as Investment for EB-5 Visa?
Retained earnings from the business based on which application has been filed do not qualify as EB-5
investment.
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Can I
Use the Money Gifted by a Parent or Other Relative for an EB-5 Investment?
Whole or part of the EB5 investment can be a gift from parents or other relatives. It is important to
document the source of the gift.
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What
Is a "Conditional" Green Card?
A conditional Green Card is a temporary Green Card valid for two years, received upon approval of the I-526 application.
An EB-5 investor first receives a conditional card before becoming eligible for a permanent green card. This mechanism verifies that the investment was actually made and that jobs were created and sustained.
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What
Are the Conditions for Removal of Conditions (I-829) Approval?
- Evidence that the entrepreneur invested the requisite amount of capital.
- Evidence that the entrepreneur sustained the investment in that enterprise throughout the period
of conditional permanent residence.
- Evidence that the entrepreneur's investment created or can be expected to create, within a
reasonable time, 10 full-time jobs for qualifying employees.
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Where Are EB-5 Regional Centers Located?
EB-5 regional centers must be located in the United States and they must have a physical address.
When a regional center receives its designation, there is a geographic scope, in addition to the
industry scope, for any EB-5 project contemplated by the regional center.
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When
Does the Period for Continuous Residence for Naturalization Begin?
When you first enter the United States as a conditional permanent resident.
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What
Documents Must I Prepare to Process My Investor Green Card Petition?
This is a case specific question. Documents vary based on the source of funds of an applicant.
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What
Are the Ways an EB-5 Investment Can Be Funded?
EB-5 investments can be funded through many sources, including but not limited to:
- Gift from relatives or friends
- Sale of property
- Secured loans
- Inheritance
- Court-ordered damages
- Liquidation of investment portfolios, mutual funds, stocks, and shares
- Sale of a company
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What
Portion of an EB-5 Investment Can Be Loan Proceeds?
The entire amount of investment can come from loan proceeds as long as the collateral is
well-documented and you prove the lawful source of funds to purchase the collateral. Also, you must be
personally and primarily liable for the loan.
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Where Can Employees in an EB-5 Business Be Located?
The location of the job creating entity should be in a TEA, but traveling employees should be
acceptable as long as they are based at the JCE site.
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How
Many Projects Do EB-5 Regional Centers Offer?
There is no restriction on regional centers on the number of projects they can have at a given time.
Some regional centers have more than one project.
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When
Is the U.S. Residence of an EB-5 Investor Guaranteed?
Your U.S. residence vests permanently upon the approval of the I-829.
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Does
the Child Status Protection Act Apply to the EB-5 Program?
Yes. According to USCIS, “CSPA allows the time a visa petition was pending to be subtracted
from an applicant for permanent residence’s biological age so that the applicant is not
penalized for the time in which USCIS did not adjudicate the petition.
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What
Is the Process for Applying for EB-5 Visa?
USCIS Application Process:
Step 1: File Form I-526, Petition by Alien Entrepreneur.
Step 2: Upon approval of Form I-526, either:
- File Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to
adjust status to a conditional permanent resident within the United States, or
- File DS-230 or DS-260, Application for Immigrant Visa and Alien Registration, with the U.S.
Department of State to obtain an EB-5 visa for admission to the United States.
Upon the approval of the I-485 application or upon entry into the United States with an EB-5
immigrant visa, the EB-5 investor and derivative family members will be granted conditional permanent
residence for a two-year period.
Removing Conditions
- File Form I-829, Petition by Entrepreneur to Remove Conditions, 90 days before the two-year
anniversary of the granting of the EB-5 investor’s conditional resident status (Green Card).
- List only the conditional resident’s address on Form I-829. If USCIS approves this petition,
the conditions will be removed from the EB-5 applicant’s status and the EB-5 investor and
derivative family members will be allowed to permanently live and work in the United States.
Courtesy USCIS Website:
https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process
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