Article: ILW's EB-5 Book: Worth Having by Anthony Guidice

“When someone convinces you to buy a product that’s exactly what you need, he’s a marvelous salesperson. When it’s not what you need, he’s a con man.”

Chin-Ning Chu

Thick Face, Black Heart

“It is far better to be silent than merely to increase the quantity of bad books.”

Voltaire

“Think before you speak. Read before you think”

Fran Lebowitz

If you’re interested in doing arduous and difficult EB-5 work, then this ILW book is something you’ll need. And other books, unless you inspect them very carefully, may be a waste of money.

You have to be careful what books you buy. One day, one of my clients had a quick EB-5 question. I had to look it up. I thought I would turn to my AILA Business Immigration “treatise,” which I supposed would have more detailed information than my general PLI Treatise (which actually is a treatise, and which I use quite a bit). So I open my $400 (member price) AILA business immigration book with the gold-embossed cover and… EB-5 investor visas aren’t in there. Nothing. Not even a throwaway description. Nothing. There must be a mistake; I’m in volume two which is immigrant visas. Nothing. I check the index. Nothing. It’s not in there.

I e-mailed AILA my opinion about this. The AILA publications woman responded that because of the “breadth” of business immigration and “the typical constraints of a production schedule” they omitted any EB-5 information! But fear not: EB-5 visas and other omitted topics are available in some other AILA books! And the member price is only $277 for the extra books. Hooray! She also told me that if I’d read the preface of the business immigration book I’d have seen what wasn’t included (dummy).

Huh? What was that again? This is supposed to be a comprehensive business immigration reference… except that it isn’t. AILA doesn’t include certain business immigration information in it. So you’ll need to buy other AILA books for that. No big deal: it’s only money, right?

I thought that legal treatises existed because the subject had great “breadth.” That’s why I usually buy them. And what does this mean: “the typical constraints of a production schedule”? … that the book would have too many words in it? It seems to me that a treatise is supposed to have a lot of words in it (but I’m no publisher). A cynical individual might suspect that the publications woman was condescendingly telling me to “piss off.” That’s fine… she wouldn’t be the first.

But she was right too… I didn’t read the preface. I assumed before I bought this supposed “treatise” that it was a comprehensive overview. The ad copy for Business Immigration might certainly lead you to believe that it’s comprehensive:

• “…fulfills a long-standing need within the business immigration community for a ‘one-stop shop’ for practical advice, legal citations, legislative and adjudicative history, detailed guidance on recent developments, AND strategic approaches to get results for clients while managing their expectations”;

• “… provide you with a strong foundation in the area of business immigration law…”

• “Peer reviewed by some of the biggest names in business immigration law, this treatise is a must for your reference library.”

• “This book is indispensable for anyone who does business immigration.”

(Tell me what it’s gonna take to get you in this one-stop shop little legal baby today, huh?)

I admittedly erred. I didn’t scrutinize the preface and the tables of contents to assure myself just what this book included, and what it did not. But I was also misled. I assumed that for $400 I was buying a comprehensive treatise. What I bought instead was two volumes of selected topics on business immigration law. I was aggressively sold and didn’t get what I thought I was getting. That assuredly will not happen again (if you think I’m taking the above ad copy out of context, go to the AILA website and check it).

But Wait, There’s More!

This unlimited AILA sales effrontery apparently has no limit. I recently received a direct mail promo from AILA: EB-2 and EB-3 Degree Equivalency with Supplement! For just a low, low member price of $129, you can own this fabulous book! “Key concepts needed to understand and interpret new issues and decisions and more!” Has sort of a QVC ring to it…

Shouldn’t this information be in the “treatise”? Is this an additional premise to offer another product for sale? All this baloney about the EB-5 omissions, and this degree equivalency book promotion strike me as something like buying a car “fully equipped,” but then when you go to the dealer, they inform you that the car doesn’t come with seats. “Well sir, if you examine the terms of your sales agreement, you’ll see that seats aren’t included. Building a car requires great technological knowledge and innovation, and seats don’t fit within that purview. But we have some great seats available for this little baby for just under two thousand dollars!” Sure – I’ll take some! Does it come with tires?

So AILA’s Business Immigration isn’t a comprehensive treatise. It’s not a poor resource really, but it is less than AILA leads you to believe it is. And AILA promotes it with such drum pounding vigor that you might think you’re buying a comprehensive resource. Big mistake.

But I’m grateful to AILA. I learned a wonderful lesson. I’m very careful now about whom I buy law books from. And another thing: law books are worth about what you pay for them. A cheap Consular Processing book, full of tired and vague articles for example, won’t help you much (if you want to display it on a shelf for clients to see, you can just as easily use old casebooks from law school). A truly comprehensive Consular Manual, that’s almost three times the money as the lousy one, ends up being cheaper.

At an average price of $400 each, ILW books aren’t “cheap,” but they’re valuable because you’ll use them frequently. Serious lawyers don’t ask how much books cost anyway; they ask how much they’re worth. These ILW books are worth plenty.

ILW’s EB-5 Book

I usually find ILW books to be highly satisfactory. They always seem to be written for actual use. That is, ILW intends them to be used as legal tools, not legal fluff. I know all publishers would say that, but certain legal publishers “pad” their books with filler: boilerplate articles or chapters written by people anxious to have something published. They’re seldom useful; they just make the book thicker. ILW doesn’t do this. I’ve always felt that ILW’s central objective is the proper one: providing actual resources to immigration attorneys; not simply attempting to rake in as much cash as possible.

Overview

Let’s work backwards just for a moment and start with the EB-5 Book CD. It’s quite a valuable resource in itself. It contains valuable USCIS Memoranda on the subject of EB-5 applications, and information on Form I-562 and I-829 adjudication and processing, amendments, etc. It also has extensive statutory reference, from the INA, Title 5 US code, 8 CFR; and even rule 501, Regulation D of the Securities Act 1933. Six Federal Court cases are included, including Amarate and Kimmel, along with 11 BIA cases. Forms are included, even Forms I-9, W-2, W-4, and 8840. There are web links to the ABA and the SEC, the Treasury department, even a link to the online USCIS Adjudicators Field Manual. There are also two articles, and even a copy of the ABA’s rules of professional responsibility (professional responsibility for immigration lawyers? - that’s funny). All in all, it’s a pretty paunchy CD full of resource material.

Part I: For Immigration Attorneys

For attorneys delving within, or about to delve within, the world of EB-5 visas, these articles provide value. This isn’t just general dust and lint written on remotely related EB-5 topics. These are meaty substantial articles offering helpful insight and working methods. All of the articles are worthwhile. I’ll mention a few in particular.

There’s a fine article by Brandon Meyer on how to build a robust I-924 submission. He delves into a thorough discussion of the process, including a step-by-step review of the form. He offers a good hypothetical example for part 3, Question 4 of the form for oversight of activities. He mentions difficulties you should expect to arise, the differences between obtaining Regional Center approval it the past, and problems faced currently; RFE issues, and Matter of Ho business plan ideas.

There is an article by John Roth – also an MBA – discussing the immigration lawyer as a financial advisor. He cautions, reassures, and outlines the duties and responsibilities of financial advisors. It’s full of good information, and it includes problems inherent in trying to generate finder’s fees from Regional Centers. (Imagine an immigration lawyer trying to make a quick, unethical buck - unthinkable!).

Another good article is on tax consequences in the EB-5 context, before and after clients immigrate. Written by David Hirson, a California Fragomen partner, it covers some basics as well as some more advanced areas: general US tax law, estate tax planning, transfers, pre-residence planning. There’s another section covering tax issues after clients immigrate: US residents and tax concerns, the substantial presence test, individuals with exemptions, and post-immigration tax planning and reporting. State taxes are covered, Social Security and Medicare taxes, planning for departure, and expatriate rules.

There’s a Robert Gaffney piece written on a very tricky EB-5 practice area – the lawful source of funds. This covers the regulatory origins of this requirement, and 8 CFR § 204.6(j)(3) documentation; as well as using the Administrative Appeals Office decisions Matter of Ho, Matter of Soffci, and Matter of Izzumi. There’s also a section detailing issues for dealing with former Soviet bloc countries, as well as current communist countries like Vietnam and China.

Elizebeth Peng of Seattle also has an excellent article in the book: How To Successfully Represent Chinese Investors in EB-5 Cases. This is well worth having, considering the suspicion with which Chinese foreign nationals are often viewed by USCIS and the Justice Department (unofficially of course).

Another good overview article deals with the future of the EB-5 program, how it has been administered so far, and what we can perhaps expect from this point on (I don’t use the dreaded phrase “going forward” – neither should you. Dude.). Daniel Lundy writes in an engaging, conversational tone, and covers topics an obvious “insider” would be aware of: USCIS policy sharing and lack of it, transparency and the lack of it; the constant change in USCIS policies, dating from the earliest days of the program; the strange phenomenon of USCIS hiring economists that questionably “help” adjudications; and areas of increased scrutiny, among other subjects.

All of these articles provide a good overview for immigration attorneys. I’ve just singled out a six of the ten, but all of them are helpful, and full of pragmatic advice. There’s no dross here, no filler. If you’re about to take on even part of the very weighty load of EB-5 representation, this Part 1 For Immigration Lawyers will reassure you. It’s a confidence builder - highly satisfactory.

Part Two: The EB-5 Program For Regional Centers,

Project Developers And Investors.

The second section of the book provides a general outlook for the entire EB-5 process. You’ll find it helpful because it enables you to review particular areas. Sometimes clients have difficulty with understanding a specific point on EB-5 visas. This section can help explain it. The title of this section – The EB-5 Program For Regional Centers, Project Developers And Investors – is aptly named. I sometimes have clients read selected topics from this section if they’re not clear on a particular area. Sometimes I have them read all of Part Two.

• Section 1: EB-5 Program Overview – a background article for the program, good to show a foreign national that thinks they may be interested in the program. They’re usually either enthused or aghast after reading it…

• Section 2: Key Logistical & Legal Issues – factors for receiving a targeted employment area (TEA) designation, Existing Regional Center Framework, the 40% rule, Forms, Evidence.

• Section 3: Groundwork Before Getting Started – Proposals for Regional Centers, putting one together; owner equity, funding, and debt.

• Section 4: Your EB-5 Team – Managers and administrators, consultants, Immigration and Securities Attorneys, Economists; and some you may not immediately think of: brokers and dealers for exchanges with the foreign entity, EB-5 agents, translators, and currency exchange providers. Also lists of questions to ask each of these team members.

• Section 5: Getting to Work on Building Your I-924 Submission Package – Includes an expansive checklist, offer structure, a Corporate Structure flow chart, the Econometric analysis, Matter of Ho compliant business plans, and USCIS Adjudicator’s Field Manual references.

• Section 6: Positioning and Marketing to Foreign Investors – appealing to investors, legitimacy, mitigating risk, making a “pitch,” a list of likely investor questions, securities law notes, finding high net worth individuals.

• Section 7: Admitting Investors – documenting investor enrollment (another good checklist), establishing investor and investment eligibility, USCIS tracking and database checklist, verifying funds, common reasons for denial, investor’s residency and citizenship path.

• Section 8: Financial Overview – key financial considerations for ongoing Regional Center operations.

• Section 9: The Direct/ Individual Investor EB-5 Option – direct investment into non-Regional Centers, guidelines for direct investment plans, writing a direct investment business plan, sample direct investment business plan.

• Section 10: Keeping Up to Date – importance of USCIS EB-5 Stakeholder Meetings, a sample agenda, information and statistics.

Part II also includes a comprehensive glossary, a list of web resources and available conferences, a compendium of USCIS instructions and requirements for Form I-924, and some precedent caselaw. A very convenient sample letter to an economist is also included. Unless economists are already well versed in the EB-5 milieu (unlikely) they’ll need some of it explained to them. This letter serves nicely. Just try outlining a letter to an economist detailing the workings of the EB-5 process in less than an hour; this sample letter is an unexpected bonus.

The Part III Resource Materials section is a general supply of federal regulations, complete cases, forms with instructions, and agency memoranda. There’s also a 16-page memo with recommendations from the USCIS Ombudsman originally published in 2009.

The very helpful CD I’ve already mentioned, contains copious resource material you can readily cut and paste into briefs, letters, memoranda, or form supplements.

Conclusion

EB-5 work is difficult, involved, and tedious. Over and above the usual “white knuckle” immigration material, EB-5 work requires business and tax knowledge, SEC knowledge, and maybe a bit of USCIS mind reading too. But the benefits to having a weighty, fundamental EB-5 background are considerable. Because you may spend hundreds of hours of study in any one EB-5 area no single resource is completely comprehensive. But this book is a very helpful resource, and it may be the best single volume on the subject. ILW also regularly conducts comprehensive EB-5 workshops, with discounts available to qualifying lawyers and clients.

An old Chinese proverb says, “Buy the best and cry once.” This EB-5 book encompasses several things at once: it’s a good foundation, a fine jumping off point, and a good general resource. Not a slickly presented object that’s mostly hollow inside, this book is invaluable because it’s full of solid answers, and can direct you to other precise answers. It’s well worth owning. Take a weekend and read it. Like an old friend, you’ll enjoy spending time with it.