Comment: EB5 Is A Security

In SEC vs. Hui Feng and Law Offices of Feng & Associates PC, the US District Court for the Central District of California decided several matters of particular importance in EB5 cases, and broadly, to the immigration bar also. We summarize some of the key findings of the court, and also set forth what it means to immigration attorneys other than those who practice EB5.

The court said that EB5 investments are securities “even where ... made primarily for other reasons in addition to profit” (p. 9); and further said that “evidence demonstrating [investors] were also motivated to make EB5 investments to obtain permanent residency in the [US] does not preclude a determination that the EB5 investments involved an expectation of profits and are therefore securities” (p. 10); and held that “although it is undisputed EB5 investors are also motivated to make investments to obtain permanent residency in the [US], the EB5 regulations require, and the terms of the EB5 investments demonstrate capital contributions were made by [investors] for the purpose of generating a return. Accordingly, the Court finds the EB5 investments are investment contracts and therefore securities governed by federal securities laws and regulations” (p. 11). The court also found “Defendants were brokers subject to registration requirements under Section 15(a) of the [Investment Advisers Act of 1940]” (p. 15). The court found that “Defendants violated Sections 17(a) and 10b-5 based on a scheme to defraud clients and regional centers”. See the court’s opinion and order below.

EB5 investments are securities – and bar members should not partake of contingent compensation for their placement (apart from legal fees) either directly or indirectly, unless they have securities licenses from FINRA. Bar associations should also be careful about ensuring that contingent compensation improperly received by their members for placing securities does not compromise the associations in as much as these members may be involved in making representations on behalf of the associations involved. The facts on the matters are such that these two admonitions have, for the last several years, been followed more in the breach than in observance.

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Help Wanted: Junior Associate Attorney
Melville, NY – Small growing law firm (20 years) in Melville, NY seeks to hire a full-time Junior Associate Attorney. We are considering applications from attorneys recently admitted to bar or with less than one year experience. Please submit a cover letter, resume, and writing sample. Only resumes emailed to will be considered. Do not contact the firm directly. Duties: Compile and file routine and complex immigration applications and petitions under senior attorney supervision (H-1B, L-1, O, PERM, family-based processes, etc.), Compose letters to clients, Draft legal memoranda and articles, Support clients in immigration program management and compliance, Attend client interviews, participate in and conduct meetings with clients, Other relevant duties as may be assigned The ideal Associate will have the following: JD required, Member of State Bar Association (NY or NJ preferred), Some business immigration experience preferred, Spanish language fluency required, Fast-learner, strong analytical and problem-solving skills, excellent written and verbal communication skills, and demonstrated attention to detail, Must be able to multi-task in a fast-paced environment with competing demands when required, Must be comfortable working in a small firm environment, Must be residing within driving distance of Melville, NY. Please send resume to Only resumes emailed to will be considered. Do not contact the firm directly.

Help Wanted: Immigration Attorney
Florida - A Florida based Regional Center having done several EB5 projects is seeking to team up with an experienced Immigration Attorney for I-526,I-829, I-924, I-924A filings. The Immigration Attorney must have filed successful 526 and 829 cases, should have prompt availability and be ready to travel internationally at a short notice. Boutique law firms and individuals working with larger firms willing to branch out on their own are ok. Interested attorneys please write to:

Help Wanted: Immigration Attorney
Miami, FL – We are seeking an immigration attorney (Bilingual) with minimum 4 years' experience in Immigration & Deportation. Essential duties include: Attending court hearings; Handling client intake interviews; Traveling within the U.S. and abroad; Legal research, attending, preparing and filing appeals at USCIS and EOIR; Completing applications with USCIS; Answering client related phone calls, keep notes, update calendar for court, prepare briefs and appeals and all other daily activities within an Immigration Law Firm; Experience with Employment Based Visas a PLUS! Minimum work hours are Monday-Friday from 9:00 a.m.-5:30 p.m. and/or early court hearings, occasional weekends when necessary. Paid Vacations, Legal Holidays. Salary depending on work experience. Please send resume to

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