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[HOT] Meeting the "at risk" requirement in a direct EB-5 case is tricky -- or confusing?
As the AAO and the federal district court decision for the same case show below, meeting the "at risk" requirement is tricky, and the federal district court in some sense side-stepped the primary issue of how to practically meet this requirement.
AAO Denial Decision: http://eb-5center.com/files/hakcohumaideb-5aaodismissalapr20200902b7203-...
Federal District Court (Northern Texas) Decision: http://eb-5center.com/files/humaidvroarkndisttx01262010eb-5-110320212859...
The denied EB-5 investor was mad enough at USCIS and/or AAO to file this federal court case. It almost seems like they knew they would lose at the AAO level but wanted to receive the denial so they could file a federal court action. But the federal court largely side-stepped the primary issue raised in the AAO in our opinion. Read the decision and judge for yourself.
Also attached is a federal district court upholding the "investment" in a denied E-2 change of status case.
http://eb-5center.com/files/E-2_Investment_All%20Bright%209-11-12.pdf
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Is there a rule in an immigration context similar to Rule 11 of the Federal Rules of Civil Procedure, which appears to impose upon lawyers (in litigation) an affirmative duties to make reasonable inquires before making a filing? Thanks.
I don't think there is any particular rule under USCIS regs, but there might be a similar rule under lawyers ethics codes. Perhaps others could answer.
Hypothetical situation: A U.S. immigration lawyer receives client case files and documents from a Chinese immigration agent in China. The Chinese immigration agent in China assists in preparing the case files submitted to USCIS. The Chinese immigration agent communicates with the client in China, and there is no direct communication between the US immigration lawyer and the client in China. U.S. immigration lawyer signs the G-28. It later turns out that there is a fraudulent document submitted to USCIS in the I-526 application. The fake document was prepared by the Chinese immigration agent without the knowledge of the U.S. immigration lawyer.
Question: Is the U.S. immigration lawyer imputed to have knowledge of the fraudulent document submitted to the USCIS since the U.S. lawyer's Chinese immigration agent partner had knowledge of the fraud under the agency principle or some other basis? Or can the U.S. immigration lawyer hide behind the Chinese immigration agent and claim that he/she did not have knowledge of the fraud? Under ABA ethics rules, a lawyer must communicate directly with his/her client.
Thank you.
Probably, the US immigration attorney is obligated only under the applicable ethics rules to communicate directly with the client abroad. I do not think there is, or should be, any imputation of the knowledge under the general common law though. If the client wants to fake a document, there is no way a US immigration attorney has a way of knowing, whether or not the US immigration attorney directly communicates with the client.
"If the client wants to fake a document, there is no way a US immigration attorney has a way of knowing, whether or not the US immigration attorney directly communicates with the client."
In the hypothetical situation above, it is not the client that is making the fake document, but rather the Chinese immigration agent that is making the fake document. The U.S. immigration lawyer is not supervising his/her Chinese partner processing the client case files. The Chinese immigration agent is preparing the I-526 file and the U.S. immigration lawyer is signing the G-28 making it appear to USCIS that the U.S. immigration lawyer prepared the file.
Even if the Chinese emigration agent is faking the docs, I think the answer is the same. An immigration attorney may be violating the applicable ethics rule, but I don't think the immigration attorney can be deemed to have participated in the document fraud. If others have comments, please post.
"Even if the Chinese emigration agent is faking the docs, I think the answer is the same. An immigration attorney may be violating the applicable ethics rule, but I don't think the immigration attorney can be deemed to have participated in the document fraud."
While I sympathize with your position, from a public policy standpoint, allowing the U.S. immigration lawyer to hide behind the Chinese immigration agent has the tragic practical consequence of creating a huge industry of document fraud in China and tragically corrupts the U.S. immigration system by making U.S. immigration lawyers and perhaps even the USCIS complicit in such fraud since they are turning a blind eye to it. Moreover, the U.S. immigration lawyers and USCIS have knowledge of the problem generally.
I am sympathetic to your argument, but I do not think this fraudulent acts by Chinese emigration agents are prevalent or the norm. I do agree, however, that a prudent practice by a US immigration attorney would be to directly communicate with a Chinese client before signing a G-28.
"...I do not think this fraudulent acts by Chinese emigration agents are prevalent or the norm."
Fraud is the norm in China. Please see:
http://world.time.com/2012/07/26/forged-transcripts-and-fake-essays-how-...
There's an even more damning report done several years by Australia's Department of Immigration Affairs about the submission of fraudulent documents to the Australian visa sections in China.
Perhaps you have a better knowledge of what goes in China than said writer.
The Time Magazine article is about students applying to U.S. colleges, not EB-5 investors submitting immigration petitions. In spite of what is said above, in practice agents and EB-5 investors themselves normally get key documents from notary public offices, which are very strict about what they will issue and whose documents bear official seals and would be hard to forge, tax offices and banks, which are also usually very careful about what kinds of documents they will issue. In fact Chinese banks have proven to be the toughest of them all. The magazine article says recommendation letters are faked. Normally there are no recommendation letters in an I-526 petition, and even if there were, USCIS would not place great weight on them -- think about how little value employment certification letters issued by investors' employers have in an I-526 petition. The important documents are usually issued by entities such as a notary office, a local tax collection bureau, or a bank, and these documents are much much harder to forge than a recommendation letter.
When working with agents, I've heard endless complaints that they can't get a notary public office to notarize this or that document. This shows the documents are in fact being taken to a real notary public office.
Regardless of whether an attorney should be on the hook for faked documents or not, in practice attorneys who regularly work with Chinese clients are accustomed to seeing and analyzing Chinese documents. In my practice, I have only come across a rare one or two documents that appeared to be odd. For example, I had a client who lived in a remote region of China, and his tax payment certification document issued by the local tax office consisted of 2 sentences on one page, and that was strange. So I had the gentleman take that letter back to the tax office, get its official seal on it, and then take that letter to a notary office in the provincial capital, which notarized it independently confirming the tax office's seal was in fact genuine. So this is an example of what would happen in practice when coming across a document that "might" be fishy. In fact, this document was 100 percent real - the tax office was located in the equivalent of Mayberry RFD, China.
If USCIS suspects a particular document is fake, surely it could issue an RFE asking the petitioner to have the document notarized, then legalize the notarization at the US embassy or consulate in the area.
I am growing tired of what I perceive as a "Chinese are all liars" attitude among some American critics. I regard this attitude as being nothing less than racist. A Chinese I-526 petitioner and his/her agent would have to be crazy to try and forge documents and sneak that under the USCIS radar. The person would stand to lose his/her green card and get booted out of the USA if such a thing were discovered. Would Time Magazine publish such an article about a European country?
I wonder if USCIS might even have a small number of Chinese-speaking staff who check up on documents. It wouldn't surprise me. I'd be glad if they did because this would help stop people from claiming all Chinese are liars and forgers.
One more thing, in the past I've seen some lawyers complain that USCIS doesn't understand what the Chinese documents are. But in my opinion, it's the lawyer's job to prove to USCIS what the documents are, and what the laws of China are. USCIS examiners shouldn't be burdened with knowing what the laws of every country in the world are, and how to recognize importance of documents from every country in the world.
As for ethics, surely a lawyer who knowingly submits a false document would be in trouble. But as long as the lawyer has no reason to suspect a document is forged, and has sufficient experience working with this type of document in the past, I don't think the lawyer should be blamed.
Yes, the Time magazine article is about Chinese immigration agents processing student visas and not EB-5; however, Chinese immigration agents do much more than EB-5, and student visas are an important part of their work.
I suspect that your statement regarding the practice of Chinese immigration agents to have all documents notarized by a Chinese notary public to be incorrect. China does not have notary publics as in the U.S. China does have a local government entity called the Gongzheng Chu, which the Chinese bend over backwards to avoid as the Gongzheng Chu requires that all parties to appear in person to sign documents in front of the Gongzheng Chu officer.
With regard to ethics, as a practical matter, Chinese immigration agents that can solve documentary problems by preparing fake documents have a huge competitive advantage over practitioners that do not prepare fake documents. Ethical practictioners would simply be driven out of the Chinese market very quickly.
I didn't say all documents in I526s submitted by Chinese are notarized. Your response is rife with presumptions. I said notarized documents would be very hard to fake and your response confirms this. The notary offices in China are legally regarded as an arm of the courts and must verify the genuineness of documents they notarized, not just signatures, so their product is regarded as incontestable evidence in Chinese courts. Whether or not Chinese students get fake recommendations for school admission is irrelevant to eb5 and such letters are quite useless in an I526.
I do agree that many of the evidences that are supposedly easier to fake are not applicable to EB-5 docs. Therefore, to use that Time magazine article to say that EB-5 docs are likely to be faked does not seem to be a strong, logical argument. Actually, when it comes to EB-5 cases, sometimes it's hard to obtain docs to support what actually occurred.
In the Chinese context, virtually any document can be faked, and is highly likely to be faked. For example, loan agreements, property title documents, Subscription Agreements, Limited Partnership Agreements, birth cerfifates, divorce papers, any contract, any signature of any party Chinese or foreign, school transcripts, diplomas, licenses, Company Board resolutions, Equity Transfer Agreements, etc., etc.
In most areas of life, forgery is a common feature of daily existence in China. Cheating in school on tests, etc., etc. Even Communist Party members cheat on the official Party exams. Forgery and cheating in China is so ubiqitous that the Chinese themselves would find it very strange not to cheat or produce fake documents in a EB-5 I-526 application. Cheating and fake documents are the norm in China.
You've described it well. A good example would be bank statements, which in China vary widely from very impressive looking documents similar to American statements to simplistic computer printouts that don't even have the account owner's name on them. Some banks give excel files that can be stored in a computer or printed out, which is probably helpful for home financial planning and so on but not very helpful for I526 purposes. The problem is that these are the actual documents banks give, and we're stuck with what they give us. Some banks will give statements going back for a long time, while others will only give out statements for a very short time and won't lift a finger to help their customers. And on the story goes. So to accuse Chinese of faking everything really isn't fair. And if the so-called successful agents were really in the business of forging these documents, surely they wouldn't be dumb enough to try and produce something as crummy and unimpressive as what often is really given by a real bank. One more thing, the government of China only permits licensed immigration brokers to provide immigration advice, so like them or not, they are the ones authorized to be giving immigration advice.
"One more thing, the government of China only permits licensed immigration brokers to provide immigration advice, so like them or not, they are the ones authorized to be giving immigration advice."
This is certainly the way that the Chinese immigration agents sell their service, but the reality (like many things in China) may be a bit more complicated. For example, in order for the Chinese immigration agents to get the immigration license in China, they have to file a "Cooperation Agreement" with a U.S. immigration law firm (to do U.S. immigration work) wih the local Chinese police department issuing the immigration license in China. (A separate cooperation agreement with a Canadian immigration law firm would have to be filed if they wanted to do Canadian immigration work, etc., etc.).
I know for a fact that one of the largest Chinese immigration agents selling EB-5 RC product in China does not in fact have such an Cooperation Agreement with a U.S. immigration law firm in place. Moreover, I understand that there are about 500 licensed immmigration consultancies (and education consultancies) across China. I seriously doubt whether all of these immigration consultancies have signed Cooperation Agreements with U.S. immigration law firms. (More fake contracts?) I understand that under U.S. Bar ethics rules that it would be a breach of Bar ethics rules for a U.S. lawyer to enter into a fee sharing arrangement with non-lawyers, and assist non-lawyers in the practice of U.S. law. Thus, it may be that such Cooperation Agreements would be void for illegality.
Finally, under the relevant Chinese regulations, the Chinese immigration agents are per se agents representing the Chinese investor clients in EB-5 RC projects. It is doubtful whether legally or logically they can also be agent brokers for U.S. regional centers given the conflict of interest.
In other words, the Chinese immigration agents' marketing pitch that they (and only they) are qualified to sell EB-5 RC product in China may, in fact, be fake.
"The problem is that these are the actual documents [that Chinese] banks give, and we're stuck with what they give us."
In my view, a document issued by a Chinese government authority (or a quasi-government authority, such as a Chinese bank) is fraudulent if knowlingly issued based upon incorrect facts and if offered with an intent to mislead. Thus, a fraudulent student transcript issued by a "bona fide" Chinese university is still fake even though it may have "in fact" been issued by the Chinese university. Presumably, the same student cannot have 2 original university transcripts. Similarly, no single individual can have 2 original birth certificates from different countries. One of the 2 must be fake. It's not an issue of convenience.
I have no doubt that some local Chinese government authorities are in the business of issuing fake documents. If there's a market for fake documents (and the market is indeed huge) in China, then forgery will be a huge problem. Several months ago, I noticed a sign in front of the train station in a large Chinese city warning consumers to beware of fake train tickets. When I saw the sign, I thought to myself: "Yeah...and it's probably the staff of the train station that have gone into the sideline business of selling fake train tickets!"
This conversation is going nowhere because you are injecting presumptions. Agents only need to show their petitions are submitted by a licensed us lawyer, not some kind of fee sharing agreement. There is no reason for a Chinese EB5 investor to fake a birth certificate. Your comments are drifting into the realm of racist fantasy and I stopped taking you seriously. If you buy a fake train ticket, in the end you will get kicked off the train. I have my complaints about the agents but none of them are related to your musings. I see you've taken a few trains in China, but I have been living here over 20 years and know a thing or two.
A Chinese EB-5 investor would have an incentive to submit a forged birth certificate in order to meet the under 21 years of age requirement, or where the son was purchased from an "adoption agency" in China (real case, by the way). (One Child Policy, sons are preferred.)
With regard to the Chinese immigration agents entering into cooperation agreements with U.S. immigration lawyers (as required by Chinese licensing regulations), such fee sharing arrangements are prohibited under ABA Professional Conduct rules, as is assisting non-lawyers in the practice of U.S. law. It is unfortunate that USCIS is being mislead by the practice of some Chinese agents of submitting visa petitions signed by U.S. lawyers without admitting or acknowledging that such petitions were largely prepared by the Chinese immigration agents, typically without the U.S. immigration lawyer even communicating with the client investor. This has nothing to do with racism, it is a fact.
In my own defense, I don't think that my observations in this thread regarding the ubiquitous fraud and cheating in China have anything to do with "racism", as you suggest. We don't see similar behavior in Hong Kong, Taiwan, Malaysia, Singapore, and other Chinese societies...only in China.... Why? I don't know.....
One of the best articles coming from a foreigner who has lived in China is the recent article from Mark Kitto:
http://www.prospectmagazine.co.uk/politics/mark-kitto-youll-never-be-chi...
China strikes me as an example of what happens when one tries to forcefully impose a perfect Communist utopia upon people who are by nature very imperfect, particularly when one then later introduces the Capitalist governing principle of "MONEY". Money assumes totalitarian dimensions, dominating every aspect of the Chinese peoples' thinking. The people go "NUTS". Anything for MONEY...pretend to serve the people, and love the Communist Party...but anything for MONEY...fake documents...melomine plastic in baby milk powder to cut costs and fake the protein content reading, abscond to the U.S.A., etc. It's truly terrifying....
What you say sounds a lot like what's happening in the U.S. under the capitalism structure. Just saying. :) At least, that's what many people from Europe said to me about Americans some 10 years ago that "Americans don't know how to live. They are so materialistic and everything is about money, money, money." I profess not to have lived in Europe, so I have no idea.
"Agents only need to show their petitions are submitted by a licensed us lawyer,..."
Comment: I hope that you're not advising your clients and the Chinese immigration agents that it's o.k. for the Chinese agents to prepare the I-526s and I-829s and that all that they have to do is just pay some U.S. lawyer to sign the G-28?