By Phuong Le and An Nguyen
Breaking into a new EB-5 market, such as Vietnam, and finding the right partner comes with a set of challenges for law firms and agents, both new and established.
Let’s explore the critical elements and considerations for selecting a suitable partner and more importantly, how to ensure that the relationship is successful and mutually beneficial.
SELECTING A SUITABLE PARTNER: INTENTIONS & GOALS
At the outset, whether you’re a law firm or an agent, selecting the right partner to work with your business is critical. However, it is important to be clear about both your intentions and goals as well as those of the companies you intend to work with. The right model depends on your company’s needs and where you fit into the overall EB-5 ecosystem.
A simple common denominator is how critical EB-5 is to each company’s business. All EB-5 firms are immigration firms but not all immigration firms are EB-5 firms. Similarly, not all agents are created equally. A handful of large migration agents focus on EB-5. For others who are newer or expanding into the EB-5 space, it’s uncharted territory.
Whether you’re a law firm or an agent, the right type of partner will largely depend on how important EB-5 is to your core business. For firms that focus primarily on EB-5, they can handle the entire EB-5 industry because they have battle-tested infrastructure, systems, experience and resources. Other immigration firms, which are either new to EB-5 or expanding into this area, may not be an option because they either don’t’ have the resources to handle many cases overnight nor might they have the manpower to dedicate to training new agents. There are only a handful of established companies.
CONSIDERATIONS FOR AGENTS SELECTING LAW FIRMS
If you’re a migration agent, you’ve undoubtedly discovered that the types of EB-5 experience and capabilities can vary greatly among law firms. However, depending on your business model, you may not necessarily need a dedicated EB-5 firm.
If you’re a new agency that is exploring the strong lead/potential in your network, you may need a firm that not only provides legal consultations on source of funds work and the EB-5 process, but you may also need them to help you navigate through the initial EB-5 lifecycle of closing your first investor. The firm you select should be able to credibly handle not only the legal work for your investors but also the steps you’ll need to take in order to help the investor interface with the regional center/project, what documents need to be countersigned, and the funding mechanism/procedure to transfer investment funds to the project. The law firm should be experienced and comfortable working with both sides or be able to connect you with the appropriate people you need.
If you’re an experienced, larger migration agent, your needs will be more advanced and likely involve around the sophistication and capability of the law firm to match your business needs. Instead of 10 cases, you may need to see how a firm can handle more than 100 cases as well as provide support to your various divisions. Closely examine both the law firm’s EB-5 track record and experience with handling large scale EB-5 cases. Regardless of the number of attorneys a law firm has, who are the key people and members of their EB-5 team? Attorneys and staff are all critical components and it should be clear who will be working with your case processing team. Will the firm be available to speak or present at your seminars and who are the key people responsible for that market? Finally, if you need more advanced or sophisticated work such as training your staff on emerging trends/developments in EB-5 or conducting project due diligence, would the firm be capable of credibly and competently providing those services?
CONSIDERATIONS FOR LAW FIRMS SELECTING AGENTS
Consider what role you intend to play in the agent’s business and how EB-5 fits into your overall business. If EB-5 is integral to your business, then you should already have the internal infrastructure and experience to handle large agents and their flow-over business needs (such as project due diligence or presenting at seminars.)
To have Vietnamese staff is certainly helpful, but more important is whether they are properly trained and competent enough to handle client consultations or seminars.
Also consider whether you have the infrastructure to work/train agents overseas while maintaining the same quality of legal work you are expected to deliver. Chances are, if you are new to Vietnam, you will have to spend considerable time gaining the trust or training your new potential partner. This will be an involved process with many frequent flyer miles, long hours and a healthy business development and travel budget.
COMMON RED FLAGS
While price is certainly important, be wary of an agent or firm that focuses primarily on fees during initial discussions before vetting their partner. Moreover, closing investors in Vietnam is oftentimes a lengthy, involved process that involves a team of people. Be wary of promises to bring investors by the truckload, especially from a newcomer to the industry.
Agents or attorneys who overpromise investors on the “safety” or “guarantee” of success of a project or even their own work should give pause. Quality advice should allow an investor to make an informed decision—not to gloss over difficult details they have to weigh.
WORKING TOGETHER: COMMUNICATION & CASE PROCESSING BETWEEN COMPANIES
Say you are fortunate enough to find a partner that you trust and want to work with, which is no easy endeavor, then comes the most important part: case processing.
At the core of every EB-5 business, whether it’s a top law firm or migration agency, is communication and case processing. Even the biggest migration agencies with dedicated marketing teams know that after all the flashy seminars are over, it’s the case processing team that must work closely with the law firm and the investor in order to prepare his or her source of funds and I-526 petition. After all, the fundamental goal is to take care of the investor and his or her family to ensure they will successfully migrate under the EB-5 program. The same goes for law firms.
How prepared each side is at this stage will oftentimes make or break their relationship. If the law firm or agency is mature and developed, they likely have internal processes on how to handle client intake, case processing, and such processes. Equally important is how well each side evolves and communicates with each other, including learning and integrating their systems that will be a critical test. Neither side can afford to “figure it out later” because losing the trust of one client is one too many. Process and capability go hand in hand. Having a tested system in place that is flexible enough to scale and meet demand is critical.
COMMUNICATION & AVAILABILITY/FLEXIBILITY
Like any other relationship, communication and transparency is paramount. Most arguments in relationships usually boil down to one issue: communication. A firm’s structure grants both the freedom and responsibility to make decisions regarding such as fee structures or case processing teams. On the other hand, some companies with multiple layers have a lot of red tape and decision-making that must go through several layers of approval as a necessary evil.
Regardless of whether the firm has an office in Vietnam or otherwise, chances are they’ll be spending quite a bit of time in Vietnam. Depending on the agent’s needs, this may include everything from a multi-city EB-5 tour presenting or speaking at seminars or individual conference calls/consultations. You will also need to hold consultations and call clients in Vietnam after hours via Skype or Viber, which is a necessity for anybody doing business in Vietnam.
LANGUAGE CAPABILITIES
For language capabilities, Vietnamese-speaking staff is certainly a plus, but more importantly, it’s whether those people are competent and experienced. It’ll do little good for either side if somebody speaks Vietnamese fluently but can’t reason their way out of complicated legal issues and lose the trust of the investor client. Also be cognizant that the North and South have different dialects and cultures and your representative should be comfortable enough to deal with both.
For documents, as a best practice it’s advisable for law firms to either provide Vietnamese translations themselves or work closely with an agent that has staff who are competent with two-way translations. Its good if the firm provides English/Vietnamese versions of the major EB-5 documents to agents and investors, including background information, checklists and engagement agreements. If a third-party translation company is used, the law firm should double check the translation for accuracy and context since many legal/financial terms do not translate cleanly from English to Vietnamese.
MUTUAL INVESTMENT INTO INFRASTRUCTURE AND PEOPLE
In a competitive market, one cannot rest too comfortably. EB-5 is constantly evolving on both a policy level as well as in the marketplace.
You will need to invest considerable resources in training staff on the entire EB-5 process. It’s critical to continue evolving to ensure that both sides understand the latest issues and can properly advise clients of the latest EB-5 trends and policies.
While it’s a given that the law firm’s EB-5 experience must be its strong point, it should also look for business opportunities that can be beneficial to its agents/partners as well.
For U.S. law firms who are serious about establishing long-term success in Vietnam, it is critical to invest capital into both quality people and allowing them the freedom to focus on serving an investor market.
Attending splashy seminars and meet and greets are a helpful first step, but as anybody knows, strong relationships are not created overnight. It will likely require both companies to commit people and capital over months (and sometimes years) to understand each other’s process, people and most importantly, how to integrate the two sides to serve their investors. It is especially important for firms to understand that Vietnam is not a homogenous investor market. This is true of both agents and the types of clients they serve. Thus, law firms must adapt both their skills and approach to each market.
Phuong Le
Phuong Le is a founding member and partner with KLD LLP. He has over 15 years of experience and helps lead a global EB-5 practice group. He draws upon an extensive background advising parties on all sides of EB-5 transactions, including regional centers and direct EB-5 investments, project developers, agents, and investors. His clients span the globe and he has advised on over 5,000 investor petitions and over $2.5 billion in EB-5 financing for projects across the U.S., including commercial real estate, multifamily, charter schools, hotels, and publicly-traded franchises. He frequently travels and shares his knowledge regarding complex EB-5 matters as a lecturer, author, and EB-5 expert witness for other firms and the EB-5 industry.
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