Business & Corporate Articles


The Role of Corporate Counsel in Representing the Foreign Investor

A shrinking world through technology and global trade make the immigration and corporate law nexus critical to recognize for practitioners in either practice area.  Failing to recognize and understand the nexus could leave a practitioner losing their relevance in their circles of influence, as well as their competitiveness in an increasingly competitive profession.

In the corporate-immigration realm there is growing popularity in pursuing EB5 and other investment related visas.  “EB5” is a program created by Congress in 1990 as part of a plan to stimulate the U.S. economy through job creation and capital investment by foreign investors.  This program is employment based fifth preference — which is what the participants receive.  There is a wealth of information about the origins of the program including what the process entails, and other important details for practitioners at www.uscis.gov/eb-5.

The net effect of the stringent requirements related to job creation and capital investment, as well as the arduous task of documenting the case for USCIS, is that successful and efficient representation mandates collaboration of several players.  Those players include the immigration attorney, the corporate or securities attorney, the business plan writer, a feasibility study service, an economist, and in some cases a regional center, marketing consultants, migration agents, broker-dealers, and bank-escrow agents.  The roles of all these players interlock with the role of corporate counsel.

Corporate and securities counsel have an integral role of making sure the offering documents are in good order and compliant.  As with other investor visa applications, where the foreign investor is not looking at a regional center but instead investing in a project under their own control, the establishing documents and control planning aspects of corporate counsel are magnified.  Counsel should be familiar with all the Federal Securities laws that apply to EB5 including Regulation D and Regulation S.  Corporate counsel should carve out who shall be responsible for reviewing the marketing team at all levels to ensure compliance.  Likewise, they should be aware of various dynamics and contingencies such as responding to requests for evidence, “keeping funds at risk”, visa retrogression issues, sunset dates, and regional center administration.

Corporate counsel ought to view themselves as a co-pilot with immigration counsel — analogous to piloting a commercial airliner.  Each will have important duties independent of each other, yet mutually important to the overall representation.  Likewise, in the same analogy, the other players such as the business plan writer, the economist, and the feasibility study service make up the flight crew who are tasked with making the duration of the flight smooth.  These support services help to form a complete thoroughly-vetted project for the participants.  It is the corporate counsel, who presumably has the experience and forethought in matters pertaining to business and economics, who is at the forefront of vetting the documentation which the immigration attorney will rely on when preparing applications and client statements, etc.

Corporate counsel ought to communicate the significance of its role in the onset of the representation so the client is not mistakenly inclined to relegate the role of corporate counsel to that of scrivener or mere document reviewer.  In doing so, counsel not only enriches the relationship with the client for potentially long term service, but also enriches counsel’s reputation as the essential member of a collaborative team.

-- Dimitri Panagopoulos

This article is for information purposes and does not contain or convey legal advice. The information herein should not be relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.