Why would our attorney not advise us to apply for EB-5?
With limited options for my adult-adopted foreign son to immigrate, it personally seems EB-5 is one of the best routes. However, my immigration attorney thinks it is a very bad idea and he offered no other current viable visa options in our circumstances. If you could play "Devil's advocate", what are some reasons why he might be so strongly opposed to EB-5? Overall, do the EB-5 horror stories outweigh the opportunity?
Thousands of people have successfully used EB-5 for permanent residency, hundreds have failed and some have been cheated. The failures were almost always caused by the failure to perform "due diligence." Research the program and the particular investment, seek competent legal advice, then decide.
Your attorney might be concerned about the impact a potential loss of your investment might have on your financial state. He or she might think poorly of the EB-5 program without realizing that it has accomplished great things - billions of dollars in foreign direct investment and sustained economic impacts. While, yes, there have been instances of fraud committed by bad actors in the EB-5 program, that is only a small fraction of the overwhelming good the program has accomplished. Not being the "devil's advocate", selecting the right EB-5 project is critical. Your attorney may not also understand that choosing a project is not solely tied to the potential investment return, but on the potential job creation that will result.
The success rate of EB-5 is very high compared to many other visa options. EB-5 is a highly specialized area of immigration law and you may want to consult with an experienced EB-5 attorney to help you analyze the pros and cons of applying for an EB-5 visa.
You should contact an experienced EB-5 attorney to review the specifics of your situation and advise you whether or not an EB-5 petition may be appropriate for you. If your attorney does not practice in this area, he or she may not be the legal professional to advise you competently.
The reasons for not advising to apply for the EB-5 visa could be: there is a better way in your situation to immigrate to the United States; the source of funds are not traceable or are illegal; criminal record; or previous immigration violations, among other things. I do not know the specifics of your son's situation, but sometimes one other reason is that the attorney does not have experience in this kind of petition, since it is such a specialized area of immigration law. Since you mention "EB-5 horror stories" this makes me think that may be the case. The EB-5 program is a great way to immigrate to the United States when done with due diligence and the support of the right professionals. I recommend looking for a second opinion with an attorney who has done this type of petition.
As one who practices in the EB-5 area every day, I may be a bit biased, but cost and time may be a deterrent. With the right team behind you (immigration counsel and a business/investment adviser) you should be able to find an EB-5 project that is approvable for immigration processes as well as for investment reasons.
The EB-5 route is not for everyone, as you need to show the legal source of funds for significant sums of money ($500,000 or $1 million) that you intend to gift to your adopted son, which may not be easy. Also, not all immigration attorneys can do the EB-5 case, as it involves significant understanding of the business documents and know-how in doing these type of cases. Also, depending on when the I-130 was filed for the adult-child, your attorney may not see the immediate necessity to spend such a sum to invest (put at risk) to get him/her here when the child is an adult, and therefore, could take care of himself or herself - waiting several years for the F2B category may not be so bad. As to whether EB-5 cases have too many horror stories so that you should not attempt it, my answer is absolutely not. This is not to say that there have not been horror stories of investors being defrauded completely as in the case of Chicago Convention Center project; not getting their funds returned because they invested in equity-based projects so that they cannot liquidate to get the money back; or losing their residency because the business did not create a sufficient number of jobs to remove the condition. However, there are thousands of successful EB-5 investors who have gotten both a conditional green card (I-526 process) and then removal of conditions (I-829 process), as well as getting their principal investments returned. While because there are hundreds of regional centers out there it is difficult to ascertain which one would be best for you, there are some really good ones that have done EB-5 projects successfully over and over, and stand out among all others. Thus, it is very important to do your due diligence and choose the correct investment vehicle to reduce the risk inherent in all investments and particularly EB-5 investment immigration - your choice of investment project or regional center will determine the success of both the immigration benefits as well as recovering your investment when all is done.
Thank you for your question concerning the EB-5 program. I have found it to be a wonderful tool for meeting the immigration goals for my clients who have the means to participate in the EB-5 program. But it is not for everyone; it is a complicated process. Before I advise my clients to move to apply under the EB-5 program, I want to make sure they are a sophisticated investor who has the means to participate and who understands the risks involved. You can always get a second opinion from another immigration attorney to determine if the EB-5 program is right for you and your family. Good luck.
I would suggest that you sit down with experienced EB-5 counsel and discuss the specifics of your situation to get the best possible advice.
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