Comment: Unwaivable Conflicts
In a not uncommon EB5 pattern, some Immigration Attorneys (who are filing I-526 petitions for investors) own RCs or have ownership interest or profit in some way from the issuance of EB5 securities. It is common industry practice to acknowledge, disclose and seek to waive conflicts created from such situations. However, just because a conflict exists doesn’t mean that it is always waivable or even ever waivable; certain conflicts are by their very nature unwaivable, and in several EB5 situations attorney ownership in EB5 issuers may create an unwaivable conflict. Regardless of any fancy pieces of paper signed and executed, if there is an unwaivable conflict, the attorney in question is risking much more than a combination of rescission, fines, interest. The problem is that under SEC case law, corporate veils are often pierced in such situations, private assets, such as homes, may be at risk, not to mention the law license itself. We remind our readers that Immigration Daily has since inception concerned itself with the business well being of immigration practices (as opposed to professional associations who focus on the legality and ethics of conflicts, and stay away from focusing overly on business practices of immigration firms). Immigration Daily has always strongly declared that immigration attorneys provide an invaluable service to the immigrant community and to others with interest in immigration (such as employers) – by extension, Immigration Daily asserts that immigration attorneys, after a lifetime of hard work, should retire in peace, dignity and comfort. This is why we raise our voice against undue risks – especially if the risks involved are not fully understood or grasped by practitioners. If the interest that an immigration attorney has in an EB5 issuer is small (such as 5% of the common equity in the project), then the risk involved is much larger in proportion to any reward that can be reasonably expected. While the field of EB5 is a solidly profitable one for immigration attorneys, we strongly urge attorneys filing I-526 and I-829 petitions, not just as a matter of ethics, but as a matter purely of business risk, to stick to providing legal counsel in obtaining immigration benefits, and stay away from getting more closely entangled with issuers of EB5 securities.

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