Lincoln Stone
How does an investor select a lawyer to represent her with the EB-5 case seeking U.S. permanent residence? There is no simple answer. But let us start with the paramount considerations concerning the lawyer business. Lawyers in the United States practice law by authority of the license issued by a particular state, and each state has Rules of Professional Conduct (“the Rules”)[1], which in general are quite similar in every state. A lawyer who adheres to the core values of the Rules is likely to be a good selection for the EB-5 case.
For example, the Rules require that the lawyer should put the client’s interests first above all else. The lawyer is and should be viewed as the client’s advocate and advisor. However, the Rules require much more, including competence in all legal services provided, diligence, truthful communications with clients, candor in all matters presented to USCIS and other government agencies, and confidentiality of the client’s communications. Because the Rules require fidelity to the client’s interests, professionally responsible counsel will attend thoughtfully to matters such as whether the interests of other clients might conflict with those of a new client, or whether the lawyer’s self-interest could compromise the lawyer’s obligations to the client.
A lawyer is required to have the appropriate knowledge, time, skills and professional qualifications needed for the specific case, and dedication to the mandate of competence is among the Rules’ core values. For the EB-5 client, it is important to understand that the practice of law in the United States is highly complex and specialized with hundreds of different sub-specialties. It would be highly unusual, for instance, for an immigration law expert to be also a securities law expert. Immigration law, by the way, has been recognized in U.S. courts to be one of the most complex areas of law in the United States. And EB-5 practice is considered by many to be the most complex specialty within the immigration field. For these reasons, it would be worthwhile for a client to examine the basis for the assertion of competence that would be implied in an attorney’s indication that he or she could represent the client in an EB-5 matter.
Even with instantly available information at one’s fingertips, it is especially difficult for EB-5 investors in distant places to measure how different lawyer candidates rate in terms of the core values of the Rules. Some lawyers may be certified specialists in immigration law—the State Bar of California, for instance, has a legal specialist certification program for immigration and nationality law. Based on examination, broad experience in immigration practice, professional references, and continuing education in immigration law subjects, about 10 percent of the immigration lawyers in California are authorized to identify themselves as a Certified Specialist in Immigration and Nationality Law[2]. However, only four of the 50 U.S. states (California, Texas, Florida and North Carolina) have certification programs, and there are many competent and excellent lawyers who are not certified specialists, even in the states that offer certification. There are many professional ratings services that offer ratings or rankings of attorneys, including designations of “Best Lawyer” or “Super Lawyer,” but as none of these designations is regulated or endorsed by State Bar authorities. The well-informed consumer of EB-5 legal services would examine and consider how any such service determines what the rating or ranking might be. Usually, this information is readily available online, particularly to attorneys who wish to improve their standing.
There are many hundreds of lawyers in the United States who are competent, professionally responsible, and available to ably represent a new EB-5 investor client. Most immigration lawyers in the U.S. are competent and professionally responsible with their practices, and most of them will do what is best for their client, regardless of how much experience the particular lawyer brings to the client’s EB-5 matter. If the lawyer has little or even no experience in EB-5 matters, the professionally responsible lawyer will engage in the necessary study of law and procedures and/or engage a lawyer more experienced in EB-5 matters to co-counsel on the matter. It is important to understand that a lawyer’s discussion of the limits of his or her competence is a positive indicator, not a negative one, because it indicates that the lawyer’s duty to the client is paramount.
More specifically, in selecting an immigration lawyer the EB-5 investor should keep in mind the following:
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Evaluation of immigration eligibility is the lawyer’s responsibility, but evaluation of the financial merits of an investment may be beyond the lawyer’s competence. Whether to invest in a particular investment or regional center-affiliated entity is a complex determination requiring substantial due diligence with the help of competent professionals. The suggestion that an investment or organization is appropriate for one client because it has worked for another client may not be in the investor’s interest and should be explored further.
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An immigration lawyer should not be enticing the client to be an investor. A lawyer who is expecting to be paid a fee for such efforts by the issuer or seller of the investment must disclose such arrangements to the client, and the lawyer should not be reluctant to disclose further information. A lawyer who is promoting the investment without full disclosure of consideration to be received is more than likely not in compliance with the Rules, and also could be in violation of laws requiring broker registration. When selecting a lawyer, the legal services agreement should be reviewed carefully to make sure there are no misunderstandings about where the lawyer’s loyalties lie.
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The client requires effective communication with the lawyer. Where the client has appointed an agent for purposes of communication, the client should confirm the lawyer’s office has the language capability to communicate directly with the client in the event the client-agent relationship falters. Lawyers are always directly responsible for representation of their clients, and it would always be best for lawyer and client to be able to communicate directly as necessary.
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EB-5 practice is relatively new, uncertain and fast-changing, requiring the lawyer to make extra efforts to stay abreast of current developments in immigration rules, standards and policies. True expertise in the EB-5 practice area can be demonstrated by actual experience with client representation and/or by genuinely substantive research and written work, the merit of which could be weighted with reference to the sponsor or publisher of the same.
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The lawyer should not guarantee the outcome of the EB-5 application process as the lawyer does not control the decision-making process. Any such guarantee is likely to be deemed a violation of the Rules.
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The USCIS regulations guiding decision-making in EB-5 cases are not clear, and because of this USCIS has a history of announcing new interpretations without advance notice. For this reason, even where the client is told there is a “project approval” from USCIS, it is important to understand that changes in USCIS policy could upset expectations about approval for the EB-5 investor. An experienced EB-5 lawyer will advise the client accordingly.
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EB-5 petitions require a substantial amount of documentation to be filed with USCIS about the investor. The lawyer should want to know a lot about the investor’s background. This information is necessary for the success of the case, and the information required is often very hard to obtain. In many circumstances, the lawyer who insists on more is in fact acting in the client’s best interests.
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USCIS standards for proof of job creation are not clearly defined. The lawyer need not be an economist too, but the lawyer should be able to understand and explain the job creation methodologies used in EB-5 practice in order to provide competent guidance on EB-5 compliance issues.
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A successful EB-5 petition results in two years of conditional status, and a later petition to remove the conditions. The lawyer who, from the beginning, is concerned with the initial petition as well as the petition to remove conditions, as well as the interests of family members, is focusing on the client instead of the case.
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The final stage of an EB-5 case, removal of conditions, depends on sustaining the investment in a business for a long time. Some investors, particularly Chinese investors whose immigration may be dependent on waiting lists for visa availability due to the popularity of the EB-5 program, may have questions about the longevity of the investment business that will require financial and business expertise that most immigration lawyers lack. A professionally responsible lawyer should be forthcoming about how they could advise on those issues, and also about the limits or his or her expertise. Additionally, such a lawyer would recognize the issues presented by the client’s specific family situation, with respect to the possibilities of visa retrogression and waiting lists, and would be able to offer guidance or refer to competent counsel to address those needs.
Consideration of all of the factors listed above should inform the client in selecting a good lawyer. Finding relevant information about a lawyer one may wish to hire can be obtained by directly interviewing the lawyer or by obtaining references from reliable sources who have worked with the lawyer as a client or in another capacity. Absent personal references, a lawyer who “fails” any one of the factors listed above probably should not be hired. The lawyer who rates highly on all of these factors, on the other hand, is probably one that would serve the client well in the EB-5 case.
[1] For example, the Rules for lawyers admitted in the State of California can be accessed here – http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules.aspx.
[2] See http://ls.calbar.ca.gov/LegalSpecialization/FAQ.aspx
Lincoln Stone
Lincoln Stone has practiced EB-5 law for more than 23 years and his impressive track record includes successfully representing more than 3,000 EB-5 clients and obtaining removal of conditions for more than 1,000 investors. He directs the investor & entrepreneur practice group at Stone Grzegorek & Gonzalez LLP, a full-service immigration law boutique of 22 lawyers.
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