How are migration agents involved in EB-5?

Migration agents assist foreign investors. Their functions vary. Many agents prepare the necessary documentation, and others simply create the connection between the investor and the attorney. Please consult an experienced EB-5 immigration attorney to assist you.

It depends on the country generally, they serve as finders. In some cases, they will assist with the gathering of the documents for the I-526 filing.

The first step is to retain an experienced EB-5 attorney to advise you on credible agents and acceptable and legal procedures. USCIS and SEC regulations have to be complied with.

On the one hand, the cold fact is that migration agents exist both within and outside the United States. Several of them are sales agents of regional centers (RCs). Based on experience and contact with some of them, they typically charge both investors and RCs exorbitant fees, in essence actually charging both investors and RCs for the same transactions. Also, be on guard for some of these agents particularly outside the United States because they prefer to refer to themselves as "migration consultants", "licensed migration agents," etc. Mostly, they are not registered or licensed to sell securities. On the other hand, there is no real and legal advantages for using these migration agents in EB-5 cases. In fact, some migration agents to a degree are engaging in unauthorized practice of immigration law. They are neither trained nor equipped by experience to handle immigration cases. Caveat emptor (buyer beware), stay away from migration agents, some of them are likely to mislead you as you go through the labyrinth of complex immigration and securities laws involved in EB-5 process. Last but not the least, look at the information of a major case of fraudulent migration agents who raised over $145 million primarily from Chinese investors, which is being litigated in Chicago, Illinois [Need more info, search online for: SEC v. A Chicago Convention Center, Anshoo Sethi, Case: 1:13-cv-0098 filed by the Securities and Exchange Commission on 03/16/2013 at the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION, Chicago, IL]. Advisably, this case should be an eye opener to all of us in EB-5 cases including but not limited to, potential investors and attorneys of all stripes. Caveat Emptor: To all potential investors, use immigration attorneys, do not go through migration agents, licensed or not.

Migrations agents are heavily involved in the process of sourcing EB-5 investors from China (and sometimes from other countries). The level and type of service varies depending upon the company. Regional centers typically pay finder's fees to the agencies or to the offshore finders who refer EB-5 investors to a regional center investment project. In certain cases, the investors also will pay the migration company for its services.

This is a highly complicated area that has recently come under extreme supervision by the Securities and Exchange Commission as an entity that refers an investment for a fee is generally considered a Broker Dealer and needs to be properly licensed.

Depending on the country, the cluster of EB-5 migration agents varies. China, for example, has the largest EB-5 cluster. It is important that each migration agent/broker complies with the laws of their respective country. Fee structures vary and there is no base market rate. The larger and more productive migration agents tend to charge higher fees than do the smaller tiered agents. You are correct that in some situations, the administrative fee paid by the investor does find its way back to the agent.

I would be weary of using a migration agent or immigration consultant for any EB-5 investment. Firstly, there are no licensed migration agents in the United States, and immigration consultants are likely bordering on breaking the law if they provide legal advice. Only a licensed attorney may provide legal advice. If you are considering the use on an agent outside of the United States, you will not have any protection from applicable U.S. law or regulation. Second, the use of these services may not comply with federal and state securities law. The EB-5 investment is considered a security, and regional centers should not pay finder fees to agents for referral of an investor. A number of regional center projects have completely abandoned the practice of paying fees to individuals. As the SEC continues to increase their awareness of the EB-5 program, I imagine more projects will stop the practice of paying finder fees. A prospective investor should seek consultation from an experienced immigration attorney, and EB-5 investment advisor for further assistance in the selection of their most suitable EB-5 investment. Our office is uniquely suited to provide both services in-house.

Migration agents are often businesses or individuals located in the investor's home country that facilitates the process. Some may simply be the liaison between the investor and the U.S. immigration attorney and regional center. Some may assist with the preparation of documentation. We strongly recommend retaining a U.S. immigration attorney with experience with the EB-5 program, because the EB-5 program is a U.S. immigration process and concerns matters of U.S. law. Methods of payment depends on the agent, but both methods you describe are common.