EB 5 Attorney Retainer Agreements Explained

The scope of services clause is the most important section of the retainer agreement. It defines exactly which legal services the attorney will provide and, equally important, which services are excluded. A well drafted scope of services clause for an EB 5 case should specify whether the engagement covers: preparation and filing of the I 526E petition (Form I 526E, currently filed with a $3,675 filing fee as of April 2026); source of funds analysis and documentation; review of the business plan and economic impact study; response to Requests for Evidence (RFEs) from USCIS; preparation and filing of the I 485 adjustment of status application (if applicable); consular processing support (if applicable); preparation and filing of the I 829 petition to remove conditions on residence; and representation in any administrative appeals. Many retainer agreements cover only the I 526E petition preparation and filing, with RFE responses, adjustment of status, consular processing, and I 829 filing treated as separate engagements with additional fees. This is a common and legitimate practice, but you must understand the boundaries before signing. If the agreement is ambiguous about whether a specific service is included, ask for clarification in writing before you sign. Do not assume that any service not explicitly listed is included. Common exclusions that catch investors by surprise include: representation before the Administrative Appeals Office (AAO) if the petition is denied; litigation in federal court; tax advisory services; securities law advice; and translation of documents.

The fee section of the retainer agreement specifies how much you will pay and when payments are due. EB 5 retainer agreements typically use one of three fee structures: flat fee, hourly billing, or a hybrid that combines elements of both. A flat fee arrangement means you pay a fixed amount for defined services. This is the most common structure for I 526E petition preparation, with fees typically ranging from $15,000 to $25,000 for the initial petition. The advantage of a flat fee is predictability: you know the total cost upfront. The disadvantage is that if your case proves more complex than anticipated, the attorney has already committed to the price and may be less inclined to invest additional time. An hourly billing arrangement means you pay for the attorney's time at an agreed upon rate, typically $300 to $750 per hour for experienced EB 5 attorneys. Hourly billing is more common for complex cases, RFE responses, or matters that are difficult to scope in advance. The advantage is that you pay only for the work actually performed; the disadvantage is that costs are unpredictable. A hybrid arrangement might include a flat fee for the I 526E petition preparation plus hourly billing for any RFE responses or additional work beyond the defined scope. The retainer agreement should also specify: the payment schedule (full upfront, or installments tied to milestones); whether the retainer is refundable if you terminate the engagement before work is complete; how USCIS filing fees and other costs (translations, document procurement, courier fees) are handled, whether included in the fee or billed separately; and the method of payment accepted.

Conflict of interest issues are particularly common in EB 5 practice because of the multiple parties involved: the investor, the regional center, the new commercial enterprise, the job creating entity, and sometimes immigration agents or facilitators who referred the client. Under ABA Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.8 (specific conflict rules), an attorney must disclose any conflicts and obtain informed written consent from the affected clients before proceeding with representation. In the EB 5 context, the most significant conflict arises when the same attorney or law firm represents both the investor (the I 526E petitioner) and the regional center or new commercial enterprise. The investor's interests and the regional center's interests are not always aligned. The investor wants to ensure the project will create sufficient jobs and that the investment is properly structured; the regional center wants to raise capital and may minimize risks. An attorney representing both sides may be unable to provide fully independent advice to either. Your retainer agreement should clearly state: who the attorney represents (you, the investor, and only you); whether the attorney has any relationship with the regional center, new commercial enterprise, or any referral agent; whether the attorney receives referral fees, commissions, or other compensation from any party other than you; and whether you consent to any identified conflicts. If the retainer agreement does not address conflicts, ask the attorney directly. If the attorney represents the regional center and also wants to represent you, carefully consider whether you are comfortable with that arrangement. In many cases, the better practice is to retain independent counsel who has no financial or professional relationship with the regional center.

Clear communication expectations prevent frustration and misunderstandings during what is often a multi year legal process. The retainer agreement should address how and when the attorney will communicate with you about your case status. Under ABA Model Rule 1.4, an attorney must promptly inform the client of any decision or circumstance requiring the client's informed consent, reasonably consult with the client about the means by which the client's objectives are to be accomplished, keep the client reasonably informed about the status of the matter, and promptly comply with reasonable requests for information. Practical communication provisions to look for or negotiate include: the primary method of communication (email, phone, secure client portal); expected response times for client inquiries (24 hours, 48 hours, one business week); whether the attorney will provide periodic status updates even when there is no new development; which attorney or staff member will be your primary point of contact; and how the attorney will handle urgent matters that arise outside normal business hours. Some retainer agreements specify that routine communications will be handled by paralegals or associate attorneys rather than the lead attorney. This is common and often appropriate for day to day questions, but you should understand who is actually managing your case and who will handle critical decisions. If the retainer agreement is silent on communication, raise it before signing. EB 5 cases can take two or more years from filing to conditional green card, and you should not have to wonder whether your attorney is paying attention to your case.

Your EB 5 case file will contain highly sensitive personal, financial, and legal documents, including tax returns, bank statements, business records, identity documents, and immigration forms. The retainer agreement should address how these documents will be stored and what happens to them when the representation ends. Key provisions to look for include: how long the attorney will retain your file after the engagement concludes; how documents will be stored (physical files, electronic systems, cloud based platforms) and what security measures protect them; your right to obtain copies of your file during and after the representation; whether original documents will be returned to you after filing; and how documents will be destroyed when the retention period expires. Under the ethical rules of most states, clients have the right to their file, and an attorney cannot withhold client documents as a pressure tactic to collect unpaid fees. However, the specifics vary by jurisdiction. If your retainer agreement does not address document retention, ask the attorney to add provisions covering these points. For EB 5 cases specifically, the importance of document retention extends beyond the initial I 526E filing. Your conditional residence period lasts two years, and you will need to file an I 829 petition (Form I 829, currently with a $3,750 filing fee as of April 2026) to remove conditions. Many of the same documents used in the I 526E will be needed for the I 829, sometimes years later. Ensure your attorney's retention policy covers this timeline.