Tuesday, April 20, 2010

The Quagmire of Advising EB5 Visa Clients: Walking the Tightrope



Learning more and more this past year about the EB5
immigrant investor visa has proven to be a double-edged sword. As an
immigration attorney, my professional background sorely lacks the formal
training in finance, securities, and investments which are not only essential
in determining the quality of any particular investment opportunity, but also
critical in relation to observing US securities laws.  So no matter how much I learn, I really can't
impart that aspect of my knowledge to my clients in a comprehensive manner.



 



The problem is this: the more I read, the more I learn; the
more I conduct my own, admittedly imperfect, due diligence on the ever-growing
number of approved regional centers, the more I come to my own, admittedly
imperfect, conclusions. While I would like to believe that these conclusions
are based upon 20+ years of investment visa experience, a growing understanding
of the components which define a "good" regional center, and my
sincere objectivity, etc., I doubt the SEC would care very much about any of
that. The bottom line is that no matter how well I educate myself, I am not a licensed securities agent and despite
the specific exemptions written into EB5 provisions,
an immigration
attorney is not legally qualified to offer investment advice to his or her
clients.



 



What does that leave the prospective investor client? Well,
there are a number of online resources, many of them independent agencies,
where a prospective investor can gather a great deal of objective data
regarding service centers. Then there are the regional center's own sites, which range from
intelligently written, substance filled resources to schlocky offerings more
reminiscent of a used car lot than of a serious investment opportunity. Finally,
there are guys like Michael Gibson, who will serve as a "hired gun"
for a prospective investor seeking a truly objective, "apples to
apples" comparison of potential EB 5 regional center investments.



 



So the problem comes back full circle to the immigration
attorney: when a client is sitting across from my desk asking me point blank
"which do you think is the best EB5 regional center investment out there?"...
I can only smile and regretfully explain that I am not qualified to answer that
question and that he or she must conduct their due diligence either
independently or via a qualified agent.



 



That's never the answer the client wants
to hear.



 



There is undoubtedly an ethical tightrope which must be
walked in this business of advising prospective EB 5 visa clients and is one
upon which I tread very carefully. Unfortunately, a disproportionate number of
the immigration attorneys who tread this line less carefully are entrenched in
conflicting interests ranging from undisclosed dual representation to actual
ownership interests in the EB5 regional centers they are enthusiastically
recommending to prospective investors. In the coming weeks and months I will be
exploring this issue more deeply and seeking specific guidance from the Florida
Bar as to how we can, as immigration attorneys, walk this tightrope without
violating ethical rules.



 



Hopefully, the answers which will reveal themselves will
prove useful to prospective investors bewildered by an avalanche of marketing
and propaganda originating from that most unqualified of investment resources…the
immigration attorney.  Stay tuned.



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