cation of the source of investor’s funds. Before investors decide
to commit their funds to the EB-5 project, the compliant project documentation must be prepared, and the regional center
must be designated. However, the individual investors’ source
of funds authentication documents may not yet be prepared.
One of the dilemmas for the EB-5 project developers and
the brokers and intermediaries is that investors may desire to
use their own immigration attorneys who may not have EB-5
expertise. Because these players are also concerned about the
immigration success of the investor, it is highly recommended
that investors engage experienced EB-5 attorneys to advise in
the preparation of the authentication of their source of funds.
If investors decide to retain their own immigration attorney to
represent them in their I-526 preparation and filing, it is wise
for the project developers to retain EB-5 immigration counsel
to review the I-526 petition prepared by outside counsel, to
ensure quality control and consistency of the I-526 filings.
As stated, the ultimate goal for all the blind mice— the team
of professionals, the project developers, and the brokers and
intermediaries—is to obtain approval of the I-526 petition.
If the petition is denied, the EB-5 project will need to return
the investment principal funds to the investor, which results in
delays for the business development of the project, and delays
for the investor and family members in obtaining conditional
permanent residency. Additionally, the brokers would not be
paid their finder’s fees, and the professionals would miss out on
further retainers for services to be provided.
So what do we do about the three mice’s blindness? Some
improvements in the EB-5 process may help, and could include
increased USCIS predictability, expedited processing, and clarity. These could change the timing of EB-5 approvals and hasten
the commitment of investors’ funds. For example, an I-526
petition processing time of three or four months could allow
projects to wait for USCIS approval of these petitions before
committing investors’ funds, making sure that the investors have
the success of their petitions in sight before moving forward.
Hopefully, the Comprehensive Immigration Reform Act
will make the processing of I-526 petitions, I-924 applications,
and pre-approvals of EB-5 projects quicker, facilitating these
positive results. Funding for the EB-5 program is paramount,
so obtaining the commitment of funding from the brokers or
sources of the investors should be started before completing
EB-5 legally compliant documentation.
With reform in the EB-5 program, maybe these three mice
would not be so blind, and have objectives that work better
together, helping them all win the race against the clock and
build successful projects.
Edward Beshara, managing partner of Beshara P.A., has been
exclusively practicing U.S. immigration law since 1983, and
is a member of Invest in USA, and Academy of International
Business. Mr. Beshara is an adjunct professor of business
immigration law at the University of Florida and holds a J.D., B.
Juris, and LL.B degrees. Mr. Beshara is a past president of AILA
(CFL), and has received the highest AV rating as an International
Preeminent Immigration Attorney.
w w w. E B 5 I n v e s to r s . c o m