Lawyer 360 Q&A With Mona Shah & Associates’ Mona Shah
In our most recent events at MSA, Mona Shah, ESQ. has had the pleasure of being interviewed by Law 360.
Law 360 is a one-stop source for legal news and analysis for all legal enthusiasts. With Mona Shah’s experience and expertise, people have been waiting to hear her take on today’s biggest challenges in the legal field.
Her Q&A is published on Law 360’s official website. To see the article, see the link below:
http://www.law360.com/articles/643034/q-a-with-mona-shah-associates-mona-shah
To read the full interview, we have posted it in our blog below:
———————————————————————–
Mona Shah is a founding partner in Mona Shah & Associates’ New York office. The firm formulates, structures and handles EB-5 project work for multiple projects at both direct and regional centers, troubleshoots problematic cases for attorneys and regional centers and handles multiple EB-5 investor petitions.
Shah is highly proficient and experienced in EB-5 law and has authored numerous articles and blog posts on the practice. She was voted among the “Top 25 Attorneys” two years in a row by EB-5 Investors Magazine. She is also the author of “EB5 for the Chinese Investor.” Mona has written and spoken extensively on immigration law, both in the U.S. and overseas, including in China, Brazil and the U.K. Mona is an adjunct professor teaching EB-5 law at Baruch College’s Zicklin School of Business.
Q: What is the most challenging case that you have worked on and what made it challenging?
A: Perhaps the most challenging case was the Times Square Hotel in New York City, back in 2011. This was one of the first glamor projects and it received a lot of attention from the Chinese. After just over a year of hard marketing, the investors finally wired their funds and sent the documentation for the source of their funds. One case usually takes around a couple of weeks to put together. Suddenly, we were told that if all the cases were not filed within three months the developer would not use EB-5 funds and opt for conventional financing. This meant that everyone’s hard work would have been wasted. Our office were given under three months to file 150 petitions. Difficulties arising in EB-5 can come from the project developers as well as the U.S. Citizenship and Immigration Services.
Q: What is an important issue relevant to your practice area and why?
A: The most common challenges of the EB-5 industry are the unpredictability and uncertainties of the legal environment. The EB-5 statutes were enacted back in the early 1990s. As seasoned practitioners, we rely on the policy memos issued by the USCIS.
EB-5 financing has evolved from an obscure immigration program into a multibillion dollar financing mechanism, yet the laws and regulations lag behind the practice. Most of the pressing issues were not addressed in the law, regulations or policy memos, thus experience and understanding of the law become vitally important to provide effective legal solutions to the clients.
For example, one of the most common issues a seasoned practitioner like myself faces every day is the adjudication timeline can be unpredictable. Under such circumstances, I would advise my developer clients to prepare other sources of financing, such as bridge loan or bridge equity and to replace the bridge financing with EB-5 financing at a later stage.
EB-5 law is not only about immigration. It is a financing mechanism that requires profound understandings in project financing, corporate laws, securities laws and international taxation. In order to better advise clients, seasoned practitioners also need to have the knowledge in the Constitution, administrative laws and administrative procedure. We work with international clients and cross-border transactions on a daily basis. We need to be familiar with issues of national security, international currency exchange rules and international banking system.
In the EB-5 immigrant investor program, the biggest regulatory development in 2014 was the greater oversight from the U.S. Securities and Exchange Commission. Practitioners often neglect the fact that the EB-5 visa is a private offering and a sale of securities.
In the U.S., the SEC is the regulatory body for offering the sale of securities to U.S.-based investors and to foreign investors. The SEC has commenced sweeping enforcement actions against EB-5 regional centers and individuals in matters of registration exemption compliance and paying unregistered brokers/dealers. We applaud the SEC’s efforts to regulate the EB-5 industry from the early financing stage to prevent securities frauds.
Q: What aspects of your practice area are in need of reform and why?
A: I would say the EB-5 statute became outdated a long time ago. The most obvious factor is that the minimum investment threshold is still $500,000, the lowest among immigrant investor programs across the globe. The amount is no longer compatible with the Consumer Price Index. The buying power of $500,000 in 1990 has significantly diminished 25 years later in 2015. The substantive law should really reflect the everchanging practices. Other than the substantive law, the USCIS should at least attempt to stay current with technology. We applaud the USCIS’ efforts to establish an online filing system. I’m sad to say the system is neither reliable nor even usable. Today, we still primarily rely on paper filings and mail out petitions averaging 3,000 pages!
This year is going to be a transformative one for the EB-5 program. We expect there will be significant changes to the law, both through President Obama’s latest executive order on immigration and through legislation. Last August, the EB-5 visa numbers became unavailable for the first time in history to Chinese applicants because the 10,000 quota had been reached. As of December 2014, there were almost 12,000 pending EB-5 petitions at the USCIS. It is estimated by the U.S. Department of State that by May or June, this year’s quota will be consumed completely. That means that by then EB-5 visas would retrogress or become unavailable to Chinese applicants, whom account for 85 percent of the market.
We hope the president’s executive order will avert retrogression. In addition, as I mentioned before, the EB-5 legislation has become dated in terms of the capital investment amount. The minimum threshold of the immigrant investor program in the U.S. is $500,000, one of the lowest among similar programs around the world. We expect the $500,000 amount is going to be either increased or eliminated. Given the upcoming changes, we urge interested investors to seek experienced counsel and to start the application process.
Q: Outside your firm, name an attorney in your field who has impressed you and explain why
A: Ira Kurzbaan is an attorney I constantly admire. He is not only one of the most knowledgeable attorneys I have met, but also has an ability to grasp the most difficult situations and think out of the box. With all these attributes, Ira remains humble and approachable! A lovable mentor!
Q: What is a mistake you made early in your career and what did you learn from it?
A: With more than 17 years of experience, I can candidly say that I have made several mistakes in my career. One of the biggest was when I entered into an agreement with a regional center to exclusively work for them and not others. This decision hurt me financially, but taught me the importance of reading agreements properly and entering into a contract with proper advice — even though I am an attorney. When it comes to our personal issues, we are often not the best judge. Thus, for example, attorneys who handle their own divorces do themselves a disservice.