1. INTRODUCTION
By way of introduction, the author is Edward Beshara, who has since 1983, exclusively practiced business and family U.S. immigration law. For the past 20 years practiced and represented EB-5 investor clients, while for the past several years representing clients in regard to EB-5 regional centers and EB-5 regional center projects, as well as EB-5 foreign national investors.
Currently, 70% of BESHARA P.A. practice is in the EB-5 area. Briefly, a combination of knowledge, experience, and professionalism will lead to a successful EB-5 practice. Hopefully, insight will be gained by this article which will benefit your practice.
The author of this article continues to ask whether the EB-5 practice is for him. Is Edward Beshara the name behind the EB-5 program? That is, the Author’s initials are E.B., he was born on the fifth (5), and the number of his office building is 555. The question is, whether it is appropriate and advantageous to use this information in marketing efforts to promote the EB-5 practice. What do you think? Let the Author know at email, ebeshara@besharapa.com or phone at 1-407-571-6878.
2. PRACTICE INFRASTRUCTURE
Attorneys practicing in the EB-5 area might be involved in a number of different office infrastructures.
Attorneys may practice in a boutique law firm either exclusively practicing in U.S. immigration law or a combination of immigration and general practice. The same exclusivity and combination may also apply to practitioners in a large law firm practice.
I believe the same advice given as to how to manage a successful EB-5 practice will apply to attorneys regardless of the structure or size of the practice.
3. EB-5 SPECIALIZATION OR GENERAL PRACTICE
Usually with a general practice, practitioners are involved in a number of different areas of law. In respect to this type of practice the practitioner will spend a substantial amount of time and cost to become proficient in each area. The client today needs quick and accurate answers to their questions, and requires the practitioner to be in a position to provide proper legal advice. That is, steps need to be taken to avoid any possibility of malpractice.
Clients expect a lot of professional attention and hence, the attorney, associates, paralegals, and staff need to spend a lot of time in correspondence, personal dialogue and meetings with the client. Again, effective assistance is based upon expertise, knowledge and experience in the areas of practice. Therefore, one can proclaim more costs and time will be spent on becoming proficient in a number of different general areas of law, not just in the immigration field. The question is whether it is more prudent to specialize in one or two areas of law such as the EB-5 area and in business and family immigration law?
Specialization in U.S. business and family immigration law and the EB-5 area still requires time and cost. However, obviously less time and cost than practicing in a number of different areas of law such as, immigration, securities law, personal injury law etc.
To become proficient in the EB-5 area, it will require cost and time to attend seminars, conferences, and of course through practical experience representing EB-5 clients. The goal is to gain reputation as a practitioner who specializes in this area, which in turn will lead to more potential clients inquiring as to the practitioner’s services.
4. IMPORTANCE OF EFFECTIVE MARKETING AND ADVERTISING.
“Out of sight, out of mind.”
This statement reminds the Author of a website that is informative, well-designed, but no one knows about. It also reminds the Author of the public’s perception that the practitioner may have moved their practice or moved to another state, if the practitioner does not show up at networking meetings, association conferences, or seminars.
Hence, advertising in relevant publications, sending newsletters to clients or potential clients, speaking at seminars, in and outside the U.S, informs potential clients, existing clients and industry groups that the practitioner is available to offer representation. The public and potential client’s need to be continually aware of the attorney’s expertise and specialized practice areas such as EB-5. This type of advertising and marketing also informs clients and potential clients that the practitioner is still located at a particular office and still continues as stated to practice in the EB-5 area.
In the EB-5 area, clients and potential clients may include principals who are involved or desire to form EB-5 regional centers and/or EB-5 regional center projects, and also include potential foreign national investors for EB-5 projects.
Foreign national investors might be interested in investing their personal funds in their own EB-5 business or investing their personal funds in an EB-5 regional center project.
More so than ever before, foreign national investors and principles of EB-5 regional center projects are becoming more sophisticated and demand substantial expertise and experience from the EB-5 practitioners to represent, and achieve promptly and effectively their EB-5 goals.
To obtain new and keep existing EB-5 clients, the practitioner must convey their expertise and EB-5 experience through marketing and advertising media established in the EB-5 area.
However, be aware that there are many marketing groups that may wish to market or advertise the practitioners EB-5 legal services, but they usually charge a fee. Before paying a fee, it is essential to research the credibility and effectiveness of the marketing from this advertising group.
Essential marketing or advertising with the credible organization is the first step. In addition, there needs to be consistency and continued advertising placement, and involvement in networking. Remember the first Phrase, and avoid “out of sight, out of mind.”
5. STARTING AN EFFECTIVE EB-5 PRACTICE
As stated above, expertise, experience and specialization is essential to immediate and effective EB-5 representation. Today, as stated previously, the clients and potential clients require immediate expertise and experience the EB-5 area.
The best advice for today’s EB-5 market, is if the practitioner is star ting in the EB-5 area, is to co-counsel with experienced and well known EB-5 Attorneys. The EB-5 representation can occur without unnecessary delays; the practitioner can utilize the credible and experienced EB-5 Attorney’s. The clients and potential clients are more likely to engage the practitioner’s law firm for EB-5 representation. Co-counsel representation will be effective in respect to dialogue and written communications with the USCIS EB-5 unit, in dealing with EB-5 foreign national investors, and the EB-5 organization sources for foreign national investors.
By co-counseling with an experienced EB-5 attorney, the practitioner is in fact co-branding their ability to offer experienced EB-5 representation.
6. TEAM OF EB-5 PROFESSIONALS
For effective EB-5 representation, besides being an experienced and specialized EB-5 attorney, there is also an equal need to have an experienced, specialized and well-known team of professionals. The background, experience and credibility of the team members will be required and well received by the EB-5 clients.
In regard to the team of professionals, the EB-5 Attorney is the quarterback, the coordinator and director of what the team members should provide in the form of information and supporting documentation.
The EB-5 attorney, in giving direction, should be aware of timeline goals of the client, and the realistic time it will take for the professional team members to supply the required documentation. Each team member has to be willing to be involved in regular conference calls, and involved in prompt communication through emails, video conferences, and office meetings if possible. The reality is that some of the team members might be located in different cities and time zones; therefore effective communication amongst team members is essential.
The project has to be EB-5 compliant, with USCIS rules, regulations, and policies. The goal is for the EB-5 project, with supporting documentation, to be supplied by the professional team members, to be approved by the USCIS.
The EB-5 regional center project is supported by the following:
1. A comprehensive business plan.
The plan with clearly show the business will be financially viable and how the foreign national investor funds will be committed and used in the business. The plan will also show the nexus between the EB-5 investment funds being committed and the required jobs being created. The business plan has to be augmented to match the economic report.
2. An economic analysis report.
The economist will prepare a report based upon an acceptable economic methodology that as a result of the use of foreign national investor funds in the business EB-5 project there will be a nexus with the creation of the required number of jobs within a specified time.
3. Securities documents.
The EB-5 regional center project is offering interest in a business to a large number of potential EB-5 investors; as a result a securities attorney is needed. The SEC regulations require the preparation of securities documents, such as PPM’s, subscription agreement, to be offered to the foreign national investors.
The team of professionals will include the EB-5 immigration attorney, securities law attorney, the economist, the business planner, for an EB-5 regional center project.
While, the team of professionals needed for an individual direct EB-5 project, will be the immigration attorney, the business planner, certified public accountant, and corporate attorney.
The individual direct EB-5 project occurs when the foreign national investor intends to invest their personal funds into their own business which they intend to own and closely manage.
7. MARKETING OF AN EB-5 REGIONAL CENTER PROJECT
The EB-5 regional center project should be EB-5 compliant with USCIS rules, regulations and policies, but for the EB-5 regional center project to be successful it also has to be marketable.
To be marketable, the EB-5 regional center project has to be attractive to foreign national investors. This marketability is essential, as the pooling (accumulating), of foreign national investors in a short period of time, in a couple months, is essential to the success of the EB-5 regional center project, the success of the foreign national investors in obtaining their conditional permit residency, and having the conditions removed in two years. Please note, the conditional permanent residency is initially for a two year period.
Therefore, it is essential for the EB-5 regional center project with the assistance of the practitioner, contact and starts a dialogue with the right group organization that has immediate access to a source of foreign national investors who intend to invest their funds.
It is common in the EB-5 industry that Brokers, intermediaries, or financial institutions, source foreign national investors. There is a brokerage agent network in certain countries such as China, and other countries. It is important to start a dialogue with brokers who are credible and have a history of success in being able to pool a large number of investors in a short and immediate time period. Experienced and specialized EB-5 Attorneys have the ability to bring EB-5 regional center principles and brokers together to start a dialogue and negotiations. The brokers will seek a business relationship with the EB-5 regional center principles in order to obtain financial benefits for being able to bring a pool of foreign national investors to the EB-5 project. The financial benefits to the broker will usually consist of a finder’s fee and a percentage of the rate of interest on the EB-5 loaned funds. The finder’s fee etc. has to be in compliance with all SEC regulations.
Before a business contract is reached between the Broker and the EB-5 regional center principles, the Broker will demand that the EB-5 regional project insert certain requirements in the supporting documentation. For example, the brokers my demand that the jobs created will be 40% greater than the required minimum number to be created. Hence, the EB-5 employment results in a project now become marketable to the foreign national investors.
8. LAW FIRMS EB-5 DUE DILIGENCE
It is imperative that EB-5 attorneys offer only legal advice on EB-5 rules, regulations and policies and represent the EB-5 regional center projects and/or foreign national investors, only in this respect.
The EB-5 attorney should not offer business advice to the foreign national investor as to the financial viability of the EB-5 regional center project. The business viability analysis should be undertaken by an independent business advisor, for example accountant, and the foreign national investors should choose with their own due diligence their EB-5 projects.
9. FLORIDA BAR COMPLIANCE
To have a successful practice, the attorney should also intend to have a continuous practice in compliance with the Florida Bar Rules. In the EB-5 regional center area, the practitioners might be approached by a foreign national client who desires to invest their personal funds into EB-5 regional center project.
If the foreign national investor client decides to invest in a particular EB-5 regional center projects, the EB-5 regional center project may offer to pay the practitioner a finder’s fee. However, please note the Florida Bar Rules do not authorize the attorney to accept this finder’s fee and hence the attorney should not violate this Florida Bar Rule.
Therefore, the practitioner should not jeopardize having a successful and continuous EB-5 practice.
10. OVERHEAD AND OPERATIONAL COSTS
Without doubt the EB-5 practice is labor intensive and requires a substantial amount of time by staff, and requires a substantial amount of supporting documentation.
In the EB-5 practice, as more clients are obtained there will be a need to hire more staff. With additional staff, as an example, attorneys, paralegals, assistants there will be additional overhead and operation costs.
It is imperative, for the practitioner to have a business plan, and annual budget, to account for an increase in staff and overhead costs for the increased number of clients.
The dilemma is that new staff might be hired according to the practitioner’s budget in anticipation of new clients. However, if there is the reality of no new clients, then no new revenue will occur and cover the overhead or operation costs which are now a reality
If overhead costs become greater than the revenue stream, then the practitioner has to make choices. One choice is to lay off existing staff. The dilemma in this case is that some of the staff has been trained and this involved substantial cost to the law firm.
In better economic periods, the practitioner could prepare a yearly budget, plan accordingly and rely on the increased number of clients for the following year. The reliance was based upon networking, and existing clients referring more client representation to the law firm.
However, in today’s economic climate it is more prudent for the practitioner only to hire extra staff when the clients have already paid retainers to law firm practice. Today, it is more prudent that when the law office has received the revenue (clients paid their retainers), to pay for the new staff and overhead costs. The solution is balancing the certainty of new and existing clients, revenue and overhead costs.
In an EB-5 regional center practice, the law firm may be chosen by a broker to represent all of the foreign national investors for the EB-5 regional center project. As an example, the law firm may have to represent 50 foreign national investors.
The preparation of 50 petitions for foreign national investors is very labor-intensive and requires a review and indexing of a substantial amount of documentation. The documentation required will substantially refer to the authentication of the lawful source of personal funds of the foreign national investor.
To avoid unnecessary overhead and operation costs of extra staff it may be prudent and cost-effective to retain credible and specialized organizations in preparing an index to documentation showing the authentication of the source of personal investment funds.
The cost of hiring these organizations might be less than the cost of hiring new staff. There will still be a need for the law office to review the work product of these organizations before the investor’s petitions are filed.
These organizations may be an effective and efficient option which not only benefits the law practice, but also the clients who have time demands and who are either EB-5 regional center projects and/or foreign national investors.
11. MAINTAINING AN EFFICIENT EB-5 PRACTICE
There are many ways to effectively and efficiently manage a practice, and the key is regularity and consistency.
For instance, schedule weekly meetings with the staff to review case statuses, timelines, and deadlines for filings or work to be done. General and specific discussions during these meetings will benefit the clients, by the staff learning of new ideas and clarification of legal analysis which keeps the momentum of the representation within the time goals of the client.
Continuous communications with the client, whether it is a brief email response or a detailed list of instructions, clearly conveys to the client that the law office is continuing to work on their case. There is a general rule that the law office practice should respond to a client’s inquiry within 24 hours.
The EB-5 practice is in a state of flux, with constant changes in policies or new interpretations by the EB-5 unit of the USCIS. It is important for the experienced EB-5 Attorneys or the co-counsel EB-5 Attorney to have an open door policy for discussing questions and reviewing analysis with the staff. The team effort approach is essential to the EB-5 practice which in turns benefits the clients.
12. BALANCE WORK AND LIFE
Most practitioners enjoy the immigration practice, and especially in the EB-5 area in which they are usually passionate about. If the EB-5 practice has this passion and enjoyment with all the staff and client base, then this makes for a better work place.
The EB-5 practitioner and staff look forward to coming to work each day. Under these circumstances, the law office and practice becomes a part of the practitioners and staff lifestyle.
The EB-5 practice involves attending seminars, networking events, and conferences. During these events there are opportunities to socialize, have lunch and dinner with peers, colleagues, and clients. These events may take place in the U.S. or other countries, and visiting places of interest as a group is common and enjoyable.
Under the right circumstances, sometimes the practitioner will bring their families with them to enjoy the location and events at the various seminars, and conferences.
Therefore, the EB-5 practice allows the practitioners personal life style and enjoyment to be incorporated into the work environment.
The EB-5 practice is not considered to be a 9 to 5 job, and is considered to be a part of the practitioner’s lifestyle. The EB-5 practitioner usually spends time with friends and/or their family at home in the evening and on the weekends. During these times there is always the need to balance friends, family and work and the practitioner’s personal lifestyle.
With current technology, the practitioner can work from home and take necessary breaks with the family or friends.
It is also essential for the EB-5 practitioner to take a complete break from the whole practice. But, is it a real break or is it advisable to take a complete break?
The EB-5 practitioner may decide to take a one week or two week vacation. Before the vacation the EB-5 practitioner should have a meeting with the staff and review required tasks to be completed for the clients. The staff will then be in a position to give assurances to the EB-5 practitioner that they have the client cases under their control.
However, it is advisable for the EB-5 practitioner, especially if the practitioner is the leader of the law firm or department of a large law firm, to make a personal choice of contacting the office once a day for either a half or one hour to discuss with the staff any issues or questions. This brief communication will give the staff and the practitioner the peace of mind the cases are being handled correctly and timely. The EB-5 practitioner with this knowledge can continue to enjoy the vacation. This small amount of time devoted to the law practice is minimal and can be accomplished anywhere.
For instance, at the beach the EB-5 practitioner may be relaxing under an umbrella or tent. The practitioner can easily by mobile phone communicate, and retrieve, review and send emails on an iPad.
The state of the practitioners informed and relaxed state of mind should allow a happy and stress free vacation, and as a result the practitioners family remains happy and in good spirits during the vacation.
13. CONCLUSION
The EB-5 clients should always have the confidence that EB-5 practitioners has the knowledge, expertise, experience to represent these them and achieve their EB-5 goals.
The clients always desire clarity and truthful answers to their questions, and as to the approvability of EB-5 projects, timelines and the approval of foreign national investor’s petitions.
The EB-5 practitioners should not offer guarantees of results or offer business advice on any EB-5 project.
It is always beneficial to co-counsel with experienced EB-5 practitioners for EB-5 projects under the right circumstances.
There is a well-known phrase which summarizes this article on how to develop a successful EB-5 Law Practice.
“THE LAST WORD IN SELF HELP IS HELP.”