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Why do companies choose certain attorneys for EB-5 investors?

Why do some EB-5 programs require the investor to retain a nominated attorney firm despite the obvious conflict of interest?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Many regional centers have a list of attorneys they have worked with before. This ensures that the legal work will more likely than not be done correctly. Regional centers fear that denial of petition will be based upon bad legal work. A conflict of interest may be waived. If an attorney was representing both foreign investor and regional center, potential conflict should be disclosed and proper written notice given and consent received.

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    Rohit Kapuria

    Immigration Attorney
    Answered on

    You are correct that some conflicts are possible. In those situations, the conflicts would have to be waived by both the investor as well as the developer (or relevant third party client) prior to the attorney proceeding with his/her representation. I would guess this "requirement" to retain a specific firm by the developer relates to comfort and experience. The developer or regional center has in most cases determined which immigration law firm is best suited for its needs and with which it feels most confident would serve as the best immigration advocate. I do not believe there are any underlying, nefarious reasons for such predetermined engagements.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    That''s a good question. However, most bars frown upon that as you should not be compelled to work with a attorney that you are not comfortable with. I don''t have an answer as to why-but I believe many Regional Centers feel that it is easier to manage the investors this way.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    I think many Regional Center like to make sure that their investors'' applications are being handled by an experienced EB-5 attorneys who know what they are doing, so they have a list of good attorneys with whom they have done work with to refer to the investors. However, I think there is at least an appearance of conflict, if not an actual conflict, if those Regional Centers force the investors to use their own lawyer who put together their business documents. Please note that according to the attorneys'' ethics rule, the clients always have a right to choose their own lawyer.

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    Charles H Kuck

    Immigration Attorney
    Answered on

    Mostly because it ensures that the work is being done by competent counsel (as that regional center judges it). A big fear of many EB-5 regional centers is a denial based upon bad legal work. Requiring a person to use certain counsel ensures that those attorneys have been vetted and approved by the regional center. (Please note we are NOT on any list of preferred counsel, by choice).

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    Joseph Best

    Immigration Attorney
    Answered on

    The fact is that it is indeed a conflict of interest. One cannot legally represent both sides of any financial deal and there is general consensus around this among competent legal professionals. And the fact is that these arrangements in and of themselves will often require various specialized counsel in securities, international taxation and contract law as well as immigration specialists like our firm. Even if a firm has many lawyers covering many areas of the law, those firms cannot legally represent both sides of the deal any better than an individual attorney. If investors agree to this sort of conflicted arrangement at best they are foolish. Also though the business entities promoting such arrangements are asking for problems down the road by proposing arrangements and dealings which are not at arms length, meaning that if problems arise they are inviting litigation. Also many attorneys who do not specialize in immigration law and who have no expertise with administrative filings with USCIS or the Department of State dabble and wing it when it comes to the investor programs. They are often unequipped to fix the issues that should have been avoided by the initial filing. Therefore, choose your legal advisors carefully. By definition your legal advisor should not be the same as that of the company into which you are investing funds. At any point the interests of that particular company and you and your family may well (but hopefully will not) become divergent and potentially adverse. A single lawyer cannot effectively advise both sides when that happens and that''s why in U.S. jurisdictions and under the model rules of the American Bar Association- such conflicted arrangements are unethical and illegal. All that said our U.S. based immigration law firm works closely with the investment targeted business entities. We must have a good and reliable working relationship with these businesses into which our immigrant investor clients are investing. But make no mistake. Evidence we gather from companies into which immigrant clients invest is key to successfully filing the EB5 petitions and removing conditions after 2 years. We need to be able to show clearly how the invested dollars will lead to the required job creation and how the investment itself is at risk. But we clearly represent the immigrant investor which is precisely what the law requires us to do. Clear legally defined roles as to who is the agent and fiduciary of which party is essential. Any arrangement that varies from these basic facts should make someone look carefully at the legal advice they are receiving. If folks tell you differently, believe them at your peril. Good luck. It is an exciting process and with good preparation it can be very beneficial. Please contact our firm directly with any specific questions.

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    Margo Chernysheva

    Immigration Attorney
    Answered on

    If the conflict of interest is disclosed and client is agreeing to dual representation in writing, it''s ok.

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    Ying Lu

    Immigration Attorney
    Answered on

    I do not think any project can mandate the investors to use a certain law firm, though many do "suggest" a preferred attorney/ law firm. An investor should have the right to choose who can represent him/her on an immigration petition. There are a lot of experienced independent immigration attorneys without any conflicts of interest issues available to represent the investors, such as our firm.

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    Anthony Ravani

    Immigration Attorney
    Answered on

    That is actually not true. Anyone that forces you or requires you to hire certain attorneys would be the exact Regional Center that I would not want to have a relationship with. The investor must be free to hire any attorneys that he/she wishes. Some Regional Centers have a contract with certain attorneys and thus try to push for the certain attorney. As an Investor you want to be free to hire an independent attorney that is not affiliated with any Regional Center. It is the independent attorney that would ONLY be looking after your rights and benefits. But, at the same time, you want to hire an independent attorney that has experience with EB-5 cases and it is not just his first or second time doing this.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    There may not necessarily be a conflict of interest or even a potential conflict of interest. Some regional centers use a panel of attorneys, some have a referral list of attorneys for investors to choose from, and those attorneys do not represent regional centers, only the investors. Even in the case of dual representation, as long as the potential conflict is disclosed and proper written notice given and consent received, the representation can go forward, at least until an actual conflict arises.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Certain EB-5 Projects that fall under a Regional Center usually have a list of attorneys that they use or have used before, or that may be familiar with the project and/or the Regional Center. However, the choice of Immigration Attorneys is that of the individual Foreign Investor, unless they contractually agree otherwise. If you as the Investor are paying for the attorney, you should have the right to choose.

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    Boyd Campbell

    Immigration Attorney
    Answered on

    Because they are unethical?

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    Daniel B Lundy

    Immigration Attorney
    Answered on

    Many projects have "preferred" attorneys, but it is not that common for a project to require an investor to use a specific attorney. Many projects will require investors to have their petitions reviewed by a selected attorney prior to filing, however. There are a few reasons. The first is that it is not good for the project or the other investors in the project to have a large number of investors who have their petitions denied due to deficiencies in their source of funds documents. Most projects provide for either an escrow until I-526 approval, or some other mechanism for returning some or all of an investor''s money if his or her I-526 petition is denied. This means that for every denied investor, there is less money available for the project. If too many investors are denied, the project may not have enough money to go forward, which would be bad for the developer and the other investors, who would risk losing their money and not getting their permanent green cards. Because of this, having an attorney that is experienced with EB-5 matters, and who can help the investors submit petitions that are well documented and approvable is a benefit to the investors and the developer. Additionally, the way that USCIS adjudicates petitions related to a particular project involves an adjudication of the project elements, and a separate adjudication of the investor specific elements, such as the source and path of funds. USCIS will typically review the project elements of the first few petitions filed in relation to a project first. Once the project is deemed approvable, then they will move on to the source of funds. For additional investors, if the project documents are the same, then the focus of the adjudication is on the investor specific elements of the petition, and USCIS will usually not go back and ask new questions about the project. If all investors are not submitting identical project documents and a consistent cover letter, then USCIS may have to adjudicate the project elements over and over. If you are an investor in the project, there are two problems with this. The first is that it may take longer for USCIS to adjudicate all of the petitions, which may mean that it takes longer to get the money to the project and create the jobs, which could cause difficulty for you if your I-829 petition is due to be filed before all the money is in the project and the project is complete. The second, and more important problem, is that if your I-526 petition is approved, and another investor submits project documents that are different from yours, it may cause USCIS to reevaluate the project, and if they do not believe it is approvable, it is possible for them to issue a notice of intent to revoke your approved petition. In other words, if another investor files the wrong documents or does something to raise questions about the project, it could potentially cause you to lose your green card. It is very, very important that the documents filed by investors in a project are consistent with the documents filed by other investors in the same project. By having a limited number of attorneys, or by having one attorney review all I-526 petitions, the developer or regional center can minimize the risks to both the project and the investors by ensuring consistency and ensuring that the investors are filing approvable cases. That said, if you are not comfortable using the attorney recommended by the project or regional center, you should insist on working with the attorney of your choice. You may still be required to have your petition reviewed by the project attorney prior to filing though as a condition of the investment.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    Firstly, a conflict of interest can be waived. Secondly, there isn''t necessarily a conflict. That is, the investor''s interest is the same as the project''s approval of the residency petition.

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    Rachel Lew

    Immigration Attorney
    Answered on

    If the companies have a long term working relationship with their immigration attorneys who are familiar with their EB-5 projects, they would prefer to designate them to represent the investors. These attorneys usually ask the investors to sign a waiver for potential conflict of interest. But if there is actual conflict of interest in the future, the designated attorney should withdraw from the case at that time.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    Because not many attorneys know how to do EB-5 cases and the Regional Center owners do not want any false information filed with the USCIS.

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