Think Immigration: Seven Reasons Why Immigration Attorneys Should Know About the EB-5 Visa Program

As an immigration attorney, I know that when I start rattling off acronyms, non-attorneys lose interest quickly as their eyes glaze over. Even within immigration law, we often focus in on a specialty area and can be hesitant to start working on other types of cases. This is true in the business context, and especially I feel in EB-5.

Many immigration lawyers avoid handling EB-5 cases for various reasons: they don't think it's necessary for their clientele, find it too complicated, perceive it as high-risk, worry about insurance issues, or believe their clients are uninterested. As an attorney who regularly handles EB-5 cases and appreciates referrals from other immigration attorneys, I believe it's crucial for all immigration lawyers to have at least a basic understanding of EB-5 to properly advise their clients.

In my recent blog, I expand further on these examples illustrating why knowledge of EB-5 is essential:

1. Limited Options for Permanent Residency: Clients without apparent permanent residence options—no family, sponsoring employer, or exceptional ability—might benefit from EB-5. Even non-millionaires can qualify through gifts, property sales, or inheritance. You should be sure to advise that EB-5 can be a potential pathway to a green card in your consultations with clients.
2. Clients Stuck in Quota Backlogs: Clients born in China or India often face lengthy EB-2 or EB-3 backlogs. EB-5 offers a real alternative, especially with no current backlog for investments in rural or high-unemployment areas. The EB-5 Reform and Integrity Act of 2022 introduced concurrent adjustments, providing quicker access to employment authorization and travel documents.
3. E-2 Clients: Clients with an E-2 visa who are interested in permanent residence, or may be unlikely to get an extension, may be able to leverage their E-2 business investments towards the EB-5 requirements. This could mean crediting their investment amount and jobs created towards the EB-5 requirements. This route often proves to be the only viable option for a green card from their nonimmigrant visa status.
4. Canadian Citizens and Retirees: For Canadian clients or retirees wanting to spend significant time in the U.S., regional center EB-5 petitions allow them to live freely without needing to work for or live near the investment enterprise. Investments in well-chosen projects can even return the principal with some interest, possibly in as little as 2-3 years.
5. Clients Wanting Fastest Path to a Green Card: Clients looking for the fastest route to a green card or naturalization (excluding marriage) can achieve permanent residence within a year through rural EB-5 investments, as USCIS prioritizes these projects.
6. Previous EB-5 Applicants: Reviewing a client’s past EB-5 applications can reveal issues affecting other immigration strategies, including grounds of inadmissibility or conditions preventing status adjustments.
7. Client Inquiries About EB-5: Basic knowledge of EB-5 allows lawyers to answer client questions more effectively before referring them to specialized EB-5 attorneys. Yes, you can refer the business to an EB-5-focused attorney, but some knowledge of EB-5 is required to fully answer the client’s questions.

Despite its complexity and high risks, understanding EB-5 is crucial for immigration lawyers to offer comprehensive advice to their clients.

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AILA members, you have a unique opportunity to learn from each other and build expertise in this area! Join the newly created EB-5 Interest Group by heading over to your myAILA profile on aila.org and adding the EB-5 Interest Group listserv to your subscriptions. Look forward to seeing you there!

Also, those looking for in-depth analysis of the EB-5 program that directs them to all relevant statutes, regulations, court cases, and administrative decisions should order the new, 19th edition of Kurzban's Immigration Law Sourcebook, which has been fully updated to address the changes made to EB-5 as a result of the implementation of the EB-5 Reform and Integrity Act of 2022. AILA members should place their order before July 31, 2024, to lock in the lowest rate on this essential publication.

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