Melissa and Jose Train Students at UM

As the media and activists on both side have continued making "news" of Arizona's new immigration enforcement law, I've been chanting and chanting and chanting..."the law violates federal sovereignty and the first federal judge to touch it will zap it."

Bingo. As she did so, U.S. District Judge Susan Bolton ruled:

``There is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new [law],'' Bolton ruled. ``By enforcing this statute, Arizona would impose a `distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose.''

NO DUHHHH.

Look, I understand everyone's frustration with the Federal Government's failure to enact comprehensive immigration reform and control our borders but guess what?  Just because the feds do don't it doesn't mean states can usurp federal powers.

Now, can we get back to important news like Mel Gibson's latest outburst? (-;

Okay, the quick and dirty:  as most of you know, I have looooooong struggled with attorneys getting a referral fee for a client who selects a particular EB5 Regional Center AND then handling the legal work for the client.  I have heard ALL the arguments:

• "It's okay as long as it's disclosed"
• "Clients don't care"
• "That's what EVERYONE does!"

You heard me rant and rave about this fundamental conflict, which I have likened to a fox yelling "I am coming in the henhouse" before he enters, with the net result for the chickens being the same.  Despite my issues, my clients continue to hammer me over the head.  They say:

• "Jose, you CAN'T hand us over to another lawyer, we want you!!"
• "WE DON'T CARE if you get a referral fee from the Regional Center!"
• "I trust your advice and want to deal with only YOU!"

Even the Regional Centers kid me about being a prima donna on this subject.  Well, after 15 years of refusing to file immigration documents for EB-5 clients I refer to a Regional Center, I FINALLY figured out a solution with which I can live.  Like the Regional Centers with which I work, I will keep 100% of the attorneys fees in trust until the I-526 is approved.  If it is not approved, the client gets a full refund (except, of course, if they have not disclosed ineligibilities, e.g., prior convictions, etc.)  Florida Bar rules prohibit contingency fee agreements for criminal and domestic matters, but there is nothing to stop my from saying that I will not get paid until the I-526 approval is confirmed.  No tickee, no laundry.

Now: assuming I'm not the only one who conducts thorough due diligence on a Regional Center before referring a client...I challenge my AILA brethren to do the same.

If there is a single imperative rule when it comes to selecting an EB-5 Regional Center in which to invest, it's this: look at the resumes of those responsible for organizing and managing the deal.  In my many conversations with Michael Gibson, the EB-5 due diligence expert who visits EB5 Regional Centers on an ongoing basis, it has become apparent that there is much more to defining EB5 success than simply having a "good idea."  From the cockamamie to the clever, from the fiscally prudent to the reckless, an emerging pattern of success is disproportionately attributable to the Regional Centers with the most intellectual horsepower, tenacity and business savvy under the “hood” of the investment vehicle (pun intended).  Invariably, what the organizers have put under the “hood" determines not only the economic feasibility of a particular EB 5 project, but also the level of transparency investors can expect from the project’s management.

Show me the entrepreneurial histories and current financial positions of the principals behind any Regional Center and I'll give you a pretty good idea of what you can expect from their project.  There are EB-5 Regional Centers approved today which are nothing more than fanciful ideas woven together by an attorney with no actual business experience; there are others which, in altogether new ways, are pungent with the smoke and mirrors of the noncompliant structures which heralded disasters for so many EB 5 investors 10 years ago.  Some are operated by individuals with long histories of less-than-stellar results in investing.

The other deal is this: just because a reputable attorney created the Regional Center doesn't mean it will be operated reputably.  Recent unpublished I-829 denials have certainly proven that, particularly when it comes to deviations from the original business plan which REQUIRE USCIS amendments.  The USCIS isn't shy about denying petitions when A,B, and C were promised but D,E, and F delivered.  Even worse, fundamental balls dropped at the RC filing and I-526 stage are being recovered by an increasingly sophisticated EB-5 Adjudications Unit: one recent decision determined that since the Regional Center had never documented that the particular project was situated within a Targeted Employment Area (TEA), each investor would have to chip in ANOTHER $500,000 at the I-829 level to meet the requirements for permanent residency.  Can you IMAGINE...

"Excuse me, uh, Mr. Investor, there's been a little mistake.  We need another half million dollars..."

Good grief.  Doesn't anyone use a checklist anymore??

In any event, be forewarned and know that all that glitters is NOT gold: the USCIS is itself policing approved Regional Centers more proactively these days, to their credit, and enforcement  is actually happening.  Here's a link to one Regional Center that is under serious USCIS scrutiny:

USCIS Threatens to Revoke Victorville EB-5 Regional Center

But now that the proverbial dust has settled - and despite the continuing challenges which will continue to plague Haiti -- those fortunate enough to have received this compassion now face that most insidious of enemies: federal U.S. bureaucracy.  While it is clear that the U.S. can't simply "welcome all comers" and serve as the refuge for the global tide of "huddled masses, yearning to be free" prevalent in this very troubled world, the need for consistency and fairness in policy is self-evident.

According to this morning's Miami Herald, the red tape is getting thick around the Haitian community; it is something I have heard on the streets of Little Haiti as well.  If we as a nation can still justify the need for the 40+ year old Cuban Adjustment provisions, it is difficult to imagine that we can't understand that creating legal complications in the wake of the Haiti's earthquake is absolutely un-American.  Check out the Herald's article:

Red Tape for Haitian Earthquake Victims