How Do You Handle
Your First EB-5?
Five Points to Consider in
a Co-Counsel Relationship
As immigration practitioners, we serve the
best interests of our clients. Many experienced
immigration attorneys say that EB-5 should be a
last resort for high-net-worth immigration clients.
Wise immigration attorneys carefully screen their
potential clients to determine all immigration
options; and using a screening checklist for the
initial intake meeting or phone conference helps.
More likely than not, however, one day you will
come across a wealthy client who does not have
any other viable immigration options. That is when
reality sets in, and there is good news and bad news.
The good news is that you have your first EB-5 client, or at
least a potential client. The bad, or unsettling news is that you
are not sure how to proceed because you have never done an
EB-5 case before. Do you refer the client to an “EB-5 expert?”
That is one option. Many immigration attorneys practicing in
non-EB-5 matters just refer the business out, but then they lose
the client, they lose the legal fee, and they lose the opportunity
to learn EB-5 and potentially expand their practice. If you
decide that you want to try this EB-5 thing, you need to know
how best to “keep it in the family.”
A new EB-5 immigration practitioner should be comforted
knowing that every seasoned EB-5 attorney had a fi rst EB-5
case. Everyone has to start somewhere. Whether it was an investor sitting across a desk or conference table asking us, “How
many of these have you done before?” or whether it was just
staring at a huge pile of documents including source of funds
evidence, project paperwork, and a blank I-526 form, each of
us who practices EB-5 has had that moment where we ask, “Do
I really know what I am doing?”
Before you do anything, you should review the ABA Model
Rules on ethics as well as the specific rules for your jurisdiction
dealing with the duty of competency that lawyers owe to each
client (See ABA Model Rule 1.1). Attorneys know that clients expect competent and professional representation. Nobody wants
to be a guinea pig. And this makes it hard to break into EB-5
because it is such a highly-specialized area of immigration law.
One possible solution is to rely on an experienced EB-5 attorney as an advisor or mentor, but this can be problematic because
of the competency ethics rules discussed above, as well as for a
plethora of other reasons mostly related to the adage, “You get
what you pay for.” There are EB-5 attorneys who gladly answer
EB-5 questions from non-clients and from other immigration
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by Fredrick Voigtmann
attorneys, but these answers are informational only and are
usually explicitly stated not to be construed as legal advice, since
there is no formal attorney-client relationship. So how do you
do it? What is the best way to proceed with your first EB-5 case?
In my first few EB-5 cases, I was very fortunate to have had two
great mentors to rely on: my father was one, and a well-known
EB-5 pioneer and former INS general counsel was the other.
These two experienced immigration attorneys had been working
together on EB-5 cases since the early 1990s, before the Regional
Center Pilot Program existed. So, in 1994, when I first learned
about EB-5, I had mentors in place who, even though they were
still learning and experimenting with the EB-5 program, were a
great resource for me as I began to “get my feet wet” in this area.
So, if you are not going to refer the business out, and you are
not going to use an advisor/mentor, your remaining option is
to co-counsel with an experienced EB-5 immigration attorney.
Here are five points to consider:
ONE
1. Select competent co-counsel.
Since you likely do not work for a law firm with an established
EB-5 practice or for an attorney who specializes in EB-5, your
first EB-5 case probably will be only as good as the co-counsel
you select. You want to co-counsel with someone who has done
a fair number of these cases - successfully.
In choosing a co-counsel, you should put yourself in the
client’s position. If you were a foreign investor, would you
retain this attorney to represent you? It certainly is appropriate
to ask questions and conduct due diligence; and do not assume
that because the attorney is experienced in other immigration
areas that he or she is an EB-5 expert. Also, do not assume that
a well-known EB-5 attorney is able or willing to enter into a
co-counsel relationship. Some are too busy or are just not interested in providing that service.
TWO
2. Use well-drafted engagement agreements
for both the client and co-counsel.
You should have a well-drafted engagement agreement with
your client that both notifies the client of the existence and
role of the co-counsel and requests consent to the arrangement.
Also, you should have a clear written agreement with co-counsel
spelling out the roles and responsibilities, i.e., who is the lead
counsel for the case, who will communicate with the client, how
will the G-28 and I-526 be filled out, who is the attorney of
record for USCIS notification purposes, who will do what, etc.
EB5 INVESTORS MAGAZINE
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