Generally , in immigration law , attorneys more commonly engage in dual representation of clients than in other practice areas ; this is due to the common fact that , in business law and family law contexts , the interests of both clients are usually closely aligned . Immigration representation is unique when compared to other areas of the law , as it is typically not an adversarial process , and as all parties typically have the same desired objectives 2 . Further , as a practical matter , using separate counsel in a business or family immigration context results in inefficiencies and higher costs for both parties .
While most other types of business immigration cases allow a client to consent to dual representation with a proper waiver , we believe the EB-5 context presents unique challenges when a waiver is unlikely to stand . The interests of the regional center and the individual investor are arguably not aligned at the very outset of the EB-5 relationship , since the regional center ’ s main objective is to obtain financial funding for its projects while the investor ’ s main interest is to obtain immigration benefits . Given these differing interests , we believe that as a matter of best practice , an immigration attorney should only represent one party — either the regional center or the individual investor — but not both . While some attorneys may disagree with our opinion based on their specific waiver language , which tends to narrowly define the scope and limits of attorney representation , we believe dual representation in the EB-5 context is fraught with risk and that waivers are insufficient . In addition to the ethical issue of a conflict of interest between two clients , an EB-5 attorney runs the risk of SEC scrutiny and potential enforcement as EB-5 offerings are securities offerings .
SEC Anti-Fraud Provisions
Generally speaking , a gap in power and financial knowledge often exists between a large corporation that is issuing the security and an individual investor of the security . Congress enacted the Securities Act of 1933 to protect investors from fraud in the offer or sale of securities along with the Securities and Exchange Act of 1934 to govern the secondary trading of securities . Under these Acts and corresponding SEC regulations , violations for issuers of security occur when there is either negligent misrepresentation or actual knowledge of making an untrue statement of material fact or any omission to state a material fact , which cannot be waived . Although most EB-5 offerings are not registered securities offerings , these anti-fraud provisions still apply .
“ Given these differing interests , we believe that as a matter of best practice , an immigration attorney should only represent one party .”
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EB5 INVESTORS MAGAZINE