Mark I. Davies, Global Managing Partner and Founder of Davies & Associates, LLC

Anil Mascarenhas, IIFL | Mumbai | April 11, 2016 15:29 IST

”While many law firms use Indian lawyers to lower internal costs our firm uses dual- qualified Indian lawyers not to reduce costs but to improve quality.”

Mark I. Davies, Global Managing Partner and Founder of Davies & Associates, LLC is a dual qualified lawyer within the United States and United Kingdom.  He also chairs the firm’s Global Business and Investor visa and India Practice Teams. He focuses his practice on EB5, L1, E2 and other business and investor visa solutions. Mark is a former General Counsel who is relied on as primary counsel to major corporations, investors, non-profits and businesses of all sizes. He holds a Juris Doctorate degree from the University of Pennsylvania Law School, a law degree from a major university in the United Kingdom (UK) and an MBA degree from the University of Pennsylvania's Wharton School of Business. He has also published legal articles and spoken on an international basis. Mark has been recognized by the White House of the United States for his service within the US legal profession.
 
Davies & Associates, LLC. Davies & Associates is a full service U.S. immigration law firm headquartered in New York City, USA with offices across the globe. The firm specializes in providing innovative and customized immigration solutions to a large number of clients from all across the globe. With an exceptionally talented team of lawyers drawn from the “top 10” American law firms and leading ivy-league schools. Davies & Associates, LLC primarily focuses on immigration law. With time they have established themselves as industry leaders for US immigration. They are well known for their industry leading client services and obtaining remarkable results. They are licensed to practice law in multiple international jurisdictions with offices based in strategic locations around the world. The firm represents a wide range of clients such as multi-national corporations, mid and small-sized businesses across all industrial sectors, investors, individual professionals, entrepreneurs as well as families. Davies & Associates has a dedicated India and South East Asia team which comprises of dual qualified attorneys licensed to practice law both in India and the United States.
 
In an interaction with Anil Mascarenhas of India Infoline, Mark Davies says, ”While many law firms use Indian lawyers to lower internal costs our firm uses dual- qualified Indian lawyers not to reduce costs but to improve quality.”
 
Briefly dwell on the changing landscape taking place in Immigration. Is it getting  more complex now?
US immigration law is composed of an intricate web of statutes, regulations, case law and administrative rules. With the passage of time this network is becoming ever increasingly complex. The dire need for simplification and legislative reform is generally recognized by U.S. politicians but the U.S. Congress has been unable to reach political agreement on the precise package of reforms to be passed. Any accord currently seems unlikely to be reached given a U.S. election year in which the different US presidential candidates have adopted radically different positions on immigration.
 
The EB5 Regional Center program is a prime example of the political “deadlock”.  While the Direct EB5 program is not due to expire, the Regional Center program currently expires in September 2016. The EB5 Regional Center program was also due to expire twice in 2015 but was extended each time; the difference in 2016 is that several politicians are privately reporting that given the lack of political agreement on the terms of new EB5 Regional Center legislation the program may well be allowed to expire.
 
You think people lose out due to lack of presentation?
Our experience is that meritorious U.S. visa petitions are approved. We believe that the reason that many Indian U.S. Business Visa Petitions are denied is because of the way in which they are presented. Properly presented cases premised on facts that meet the law are approved.
 
Our firm works with businesses from multiple industries across every major Indian market. On average we file a case for an Indian business coming to the United States once per week. We have been recognized by the US media as one of the U.S. law firms most active in India and acknowledged by ILW magazine staff as owning “40% of the Indian EB5 market”.
 
Despite the large volume of very small business cases our firm handles, some businesses having as few as two employees, we have never had an Indian case that we have not managed to have approved; this includes all Indian EB5, L1B and H1B Petitions filed by our firm. We have been retained to re-file cases filed by other law firms that have previously been denied – intense attention to detail has resulted in every single one of these cases being approved without issue. [Please note that we are able to refer you to some of these clients if you wish].
 
H1B Program
 
While the lottery system used in the H1B program has truly reached breaking point there are alternatives. L1B, O, J and other visa types can be used in lieu of H1B visas but their successful use involves devising a unique strategy for each client that is inherently complex and more involved. Obviously the correct applicable visa depends on the precise circumstances of each case.
 
In India and South-East Asia, you have dual qualified attorneys licensed to practice law both in India and the United States. Give us an idea of your team strength. What fields  do they come from?
We do not accept the standard proposition that each case is handled by one lawyer. We, therefore, staff our cases with a team of lawyers each of whom brings a unique competency to the team.
 
While many law firms use Indian lawyers to lower internal costs our firm uses dual- qualified Indian lawyers not to reduce costs but to improve quality.
 
Just one of the team members assigned to each case team is typically a dual-qualified US/Indian lawyer. In addition to at least five years of sophisticated private practice experience gained at a leading Indian firm each of our US/Indian lawyers has attended one of the leading law schools in the United States and brings unique and irreplaceable value to our clients.
 
We believe that it is simply not possible to properly document an Indian business for U.S. visas purposes without understanding and explaining the Indian documentation that supports our clients’ Indian business. USCIS prefer certain forms of corporate documentation that are not common in India and ONLY a lawyer experienced with both the Indian and US systems can properly prepare.
 
While inexperienced Indian lawyers who simply pass the U.S. bar exam are increasingly used to lower the cost of U.S. immigration services with disastrous effect, an experienced Indian lawyer who is also versed in US immigration law can be an indispensable part of a team focused on giving a client the very best service and results possible.
 
In addition to the India/US dual-qualified lawyer every case has at least one senior US lawyer assigned to it. In addition to the two individuals listed above we staff each case with a case preparation expert with a minimum of ten (10) years of substantive and dedicated US business visa experience. Our firm files a large number of “new business” Indian L visa petitions and “direct” EB5 cases.
 
Many of our clients need tax advice and where necessary we add tax expertize to a team. Our firm has a dedicated team of corporate tax specialists.  While our US tax lawyer has over two decades of expertize we also call on the services of Indian CA firms known to us to be highly expert with matters involving US-India cross-border taxation.
 
With the Presidential elections this year in the US, how are you viewing the US  immigration scenario? Any bets on who shall emerge as the New President? What impact do you see?
The current US election campaign contains a lot of political rhetoric aimed at specific segments of the US electorate.
 
Political Rhetoric
 
Donald Trump, for example, is very popular with blue collar workers who are concerned about losing their manufacturing jobs to foreign workers. This explains some of Trump’s immigration-related pronouncements which are unlikely to be enacted in the event of a Trump Presidency, including his statement that he will completely scrap the H1B program1. Trump is a businessman who actually seems to favor certain forms of legal business immigration that create US jobs, such as new business L and direct EB5 visas. Trump has been quoted as saying “we want people to come into our country but they have to come into our country legally.”2  Trump has also used the EB5 program to directly finance some of his family’s own projects3.
 
Democrats Pro Immigration Reform
 
Hilary Clinton seems in favor of sweeping immigration reform.  “We could add hundreds of billions of dollars to our GDP by passing comprehensive immigration reform,” Clinton said, adding that the goal should be a “path to full and equal citizenship.”4  Similar to Trump, Clinton’s family has been deeply involved with the EB5 program5.
 
EB5 Program
 
One victim of the US elections could possibly be the Regional Center EB5 program. The EB5 Regional Center program currently expires in September. After many efforts to negotiate reform to the program, reform currently seems in political deadlock and is unlikely to be agreed in an election year. Several Congressmen privately admit that the EB5 Regional Center Program now has a material chance of being allowed to expire in September 2016.
 
Whether an incoming President will have either the will or ability to deliver on any campaign related immigration promises remains to be seen.
 
Where is the huge demand coming in from for immigration to the US? What  response are you seeing from start-ups?
The huge demand of US immigration in India comes from a number of sources:
 
Cross-Border Trade: Across India firms are seeking access to the US consumer market. Rather than pay a distributor or agent, Indian firms are increasingly capturing more profits by sending employees from India to the United States to manage, grow and represent their businesses in the US market. This leads to increased demand for domestic Indian goods and services and rising cross-border trade.
 
Access to Capital: Another reason some clients move to or open operations in the US is to gain access to capital. For a start-up or smaller entity capital can be easier to obtain in the United States. This is especially the case if a product is still in the development phase.
 
Access to Consumer Market: The US is by far the world’s largest consumer market6 and that market is extremely attractive to Indian clients of all sizes. Indian firms frequently open US operations in order to access the US consumer market.
 
What are some of the reasons for the rise in the number of EB-5 investors from the Indian Subcontinent?
There is no question that the number of EB5 filings is exploding. In 2014 only 77 EB5-based immigrant visas were issued. During the fourth quarter of 2015 just one of our EB5 lawyers filed twenty-five (25) Indian EB5 Petitions.
 
There are several issues driving this:
 
Awareness of the EB5 program
 
People in India are much more aware of the EB5 program than they were a few years ago. Our EB5 filings used to be restricted to the five largest Indian cities. In the last two years this has spread to a point where we have Indian EB5 clients in every major city in India.
 
Entry of Major Regional Centers and the Demise of China
 
Part of the increased knowledge on EB5 in India comes from the fact that with the limitation on Chinese EB5 visa issuances Regional Centers see huge potential in India. Starting in 2015 Regional Centers are spending hundreds of thousands of dollars promoting EB5 in India. While we have to decline the engagement because it would be a conflict of interest, our firm has been approached by a large number of Regional Centers looking to gain access to India.
 
H1B Program and Students
 
A number of our EB5 clients have children studying in the US. These children often want to obtain a position post-graduation in the US. Given the issues with the H1B program
 
We see many of these children remain in employment in the US for several years before bringing their skills and experience back to India. When the skills and experience are brought back to India there is a “win-win” for both India and the applicant.
 
Flexibility & Businesses Success
 
The United States is by far the world’s largest consumer market (see 4(3), above). Indian companies wish to access that market directly. By accessing the market directly the Indian business is able to retain the entire margin rather than give away a substantial proportion of that margin to a US distributor or agent.
 
The EB5 program allows an Indian National to invest either in their own US business (the “Direct EB5 Program”) or a Regional Center sponsored project and, obtain a “green card” that allows either the business owner or an investor to obtain the right to freely operate any legal business they wish to in the US. The holder of an L or H1B visa is restricted to working only in the business that petitioned for their visa.
 
Entrepreneurialism Size of Businesses Accessing the US Market
 
One of the most striking changes we see across India is the size of Indian businesses entering the US market. From tiny companies of two employees in a remote village in Uttar Pradesh to a solo proprietor designing bespoke dresses for clients such as Lady Gaga in Mumbai our small Indian business clients wish to access the US market and are increasingly doing so by adding an employee in the United Sates.
 
While our firm has never had a case denied** and the experience of our clients is categorical proof that L visas are approved for the smallest of Indian businesses, obtaining an EB5-based “green card” gives the small business owner more flexibility in the US.
 
It is worth noting that these cases are a huge “win” for India. In every case we have had, the Indian entrepreneur has succeeded in the US, usually generating more demand for products and services produced in India. Thereby growing an Indian business and generating employment in India.
 
What attracts High Net-Worth Individuals to a U.S. Green Card?
Our clients have different reasons for seeking a US “Green Card”. These include:
 
  • Children studying in the US
  • Business Reasons
A lot of noise is being made about the H1B & L-1 visas. How do you view the  recent hike in fees? Does it cause any impact because people are anyways willing to spend for the same?
 
The hike in H1B fees is not dramatically impacting our clients and we do not see significant impact in the market.
 
The H1B quota is already oversubscribed and continues to be oversubscribed despite the fee hike. The number of H1B visas issued will therefore not change.
 
Because of myriad issues with the H1B program we frequently successfully navigate prospective H1B clients through the L1B program. To date no L1B Petition filed by our firm has been denied; again, we believe this is a function of the quality of the visa Petition.
 
Give a brief idea on key guidelines and procedures for business professionals and corporates seeking L-1 and EB-5 visas and subsequent Green Cards.
 
L1 Visas
 
L1 visas are inter-company transfer visas. They involve moving an employee who has worked for an employer outside the United States for at least one year in the last three to a related employer in the United States. There are two types of L1 visas: L1A for Managers and Executives; and L1B for specialist workers.
 
The key to success with L visa Petitions is to prove through careful documentation that the client’s businesses inside and outside the United States are a genuine business and that the beneficiary of the visa Petition held a genuine and properly qualified role.  To successfully do this we find it imperative to have dual-qualified Indian/US lawyer who understands the way that Indian businesses work and are incorporated, and US immigration law. Only then can the right documentation be properly explained to the US government.
 
The process of applying for an L1 visa is as follows: 
  • Preparation of business plan to USCIS standards.
  • Filing of/for I129 with USCIS
  • Receipt of response form USCIS: approval, denial or RFE
  • On approval either:
  • Approval of “Change of Status” if on US; or
  • Transmission of approval to US State Department (consulate) for visa issuance
Change of Status does NOT entail obtaining a visa. Once someone who has “changed their status” to L status leave the US they will be required to go to a consulate and obtain an L visa in their passport in order to return to the US. This is the step at which people without proper business operations in India can be discovered.
 
Converting an L1 Visa to a “Green Card”
 
It is a common misperception that there is a mechanism implicit within the L1 visa program for converting an L1 visa to a “Green card”.  L-1 visa holders do frequently transition to “Green Cards” using either:
 
EB1C (Green Cards for International Manager);
  • Possibly EB1A
  • EB2 2 or EB3
  • (b) The EB5 program
EB1C
 
EB1C allows for an international manager to obtain permanent residency in the US. It is a common fallacy that in order to obtain an EB1C “green card” you must first obtain an L1 visa; while this is a common scenario it is not mandated.
 
Where a new US business is involved that business must have existed for one year before the EB1C is filed. This is one of the reasons that applicants often obtain an L-1A visa prior to applying for an EB1C.
 
EB1A
 
EB1A allows exceptionally talented individuals who are recognized as the world’s leaders in their fields to obtain a “green card” based on their exceptional talent and ability. EB1A “green cards” require compelling evidence of ability and are therefore quite rare.
 
You specialize in providing innovative and customized immigration solutions.  Are these usually for difficult cases? Any anecdotes you could share without giving the names on how you helped?
While our firm successfully handles a large number of complex cases our standard process is used on all Indian cases our firm files.
 
One of the key ingredients to success is properly understanding and documenting a client’s Indian business. Cases involving businesses with a very small number of Indian employees can be approved if this work is properly done; inevitably this work involves taking the tie to visit a client’s business in India.
 
We can ask the clients below for permission to give them your contact information if you wish. Each case highlights a particular type of solution used by our firm.
 
Client A – Properly Documenting an Indian Business
 
Client A is from Mumbai and designs bespoke dresses for an international clientele including Lady Gaga.
 
This client had initially applied for an L visa using two other firms and been denied both times. It was obvious that USCIS had concerns as to the legitimacy of the business.
 
Our firm invested months in New York helping the client set-up his business and select the right office in mid-town Manhattan as well as photographing and documenting the client’s premises in India.  Because the client’s Indian business was not required by Indian law to have the type of standard documentation that USCIS were looking for we also prepared Indian corporate documents and board resolutions, obviously this requires an Indian lawyer who is also versed in US immigration law.
 
All of the activity created the type of documentation that real companies have. When we re-filed the case it was approved in four days.
 
We have a large number of examples similar to the above from multiple industries from every corner of India. 
  • Client B – Use of Indian Opinion Letters
  • Client B is an EB5 client. 
This client had structured his funds transfer using a Hindu Undivided Trust. USIS had then issued a Request for Evidence as the documentation was unable to show a clear source of the client’s funds in his own name.
 
As a standard matter we enter opinion letters from our dual-qualified Indian legal team where more complex issues are involved. The RFE in this case was very easily resolved by proper documentation and a legal opinion as to the nature of a Hindu Undivided Trust that included an explanation of why use of that Trust met the requirements of US immigration law. 
  • Client C – Indian Regulatory Issues
  • Client C is an EB5 client. 
This client worked with an EB5 lawyer who was not familiar with the RBI remittance rules and did not advise the client to take specialist advice. The client made transfers to the US that then had to be returned to India because they were not RBI compliant. Our team of dual-licensed Indian/US lawyers worked with the client to devise a transfer mechanism which is legal from both an Indian and US perspective.
 
While some clients and their CAs know that up to USD 250,000.00 in foreign transfers are permitted per Indian resident most are unfamiliar with the special rule that pertains to transfers in an immigration context.
 
Have you faced any Indian Visa application being denied?
Our firm is credited by the US media as being the largest filer of EB5 Petitions in India.
 
We have had no L1B, H1B or EB5 Petitions denied and have had every Indian case we have every filed approved with the one following exception:
 
We have had a problem with only one Indian L1A Petition that we are currently resolving. This was caused by USCIS stating that two signatures from a Landlord on different documents were not the handwriting of the same person and that there was, therefore, fraud involved.
 
We have been sent innumerable cases filed by other law firms that have been denied. We have re-filed these cases and have had every single case immediately approved. The cause of the initial denial has been a lack of competency in the presentation of the case filed often associated with one or more of the following: 
  • Failure to properly document the Indian business
  • Failure to prepare US style corporate documents
  • Failure of the business plan to be properly presented from both a business and an immigration perspective. 
While choosing several different types of corporate entities in the United  States, there are a host of tax issues to look at. Is there enough awareness among immigration seekers? What are you doing to educate them?
Our experience is that many, though not all, Indian applicants do not want to pay for tax advice and tax planning early in their case. The attitude tends to be that of “get the visa first and worry about tax planning later”. This can be a fatal mistake and result in significant tax penalties.
 
We advise every client for the need for tax advice and spend a lot of time explaining to potential clients why this is so important. At the end of the day a visa is simply a piece of paper in a passport, what clients really want is to succeed in the US.
 
Our firm has a tax department that contains specialist lawyers who are dedicated to providing tax advice. It needs to be remembered that there are usually BOTH US and Indian tax needs so advising a client properly involves working with professionals who are qualified to advice BOTH on Indian and US tax. For example, structuring a US subsidiary in the wrong way has, in cases we have seen filed by other firms, resulted in the unnecessary taxation of US profits in India. The problem is that most immigration firms do not warn the client about the Indian and US taxation consequences of a particular corporate structure. The other issue is that many Indian CAs are not familiar with international taxation and advising clients establishing foreign businesses.
 
Tax and EB5: In addition to the choice of corporate entity this comes-up in every EB5 case our firm files.
 
What are some of the opportunities and challenges in this practice?
The great opportunity of India is the vibrancy and entrepreneurialism of its people.  We believe that culturally Indian entrepreneurs think more similarly to their US counterparts than those in other countries.
 
We see Indian businesses of all sizes continuing to succeed in the United States in a way that grows their domestic Indian business. This is, therefore, an extremely exciting time to be working with Indian clients.
 
For the first time there appears to be a real possibility that the current Regional Center EB5 program might be allowed to lapse.
 
What is your advice to lawyers looking to enter the immigration practice?
 
I would have the following advice for lawyers entering this practice area:
 
Competence
 
Make sure you are competent. Indian US business visa applicants have unique challenges. If you do not understand the way business is transacted in India and the legal framework behind that then you are not competent to explain a client’s business to the US government. Consider partnering with an experienced Indian lawyer who is dual-qualified in the United States and understand US immigration law.
 
You are also not competent to advise an Indian EB5 client unless you understand the now complex RBI foreign remittance rules. While your client will engage an Indian advisor to assist them on this topic you need to know when a client needs help and, critically as most Indian CAs are not familiar with the rules as they pertain to LRS transfers for immigration proposes, where to get your client competent help.
 
Also be willing to spend a lot of time in India visiting your client’s businesses.  The understanding you will gain from this will not only make you a more effective lawyer but will prevent you from becoming involved with some of the frauds in the market. 
  • Client Relations & Focus on Client Success, not Visas
  • As mentioned above, understanding your client’s business and building long- term relationships is indispensable.
No client wants a visa; a visa is simply a piece of paper in a passport. Clients want to be successful in the United States.  As the US “entry-point” to many clients, it is incumbent on a lawyer to understand a client and make sure that he or she is getting the proper advice that enables them to succeed in the U.S. For example, many clients have no idea as to US employment laws and the importance of certain processes and procedures – either gain the in-house expertize to advise your client or refer them to a competent source.
 

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