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routinely request
“ ...RFEs
information not directly
related to the investment
funds, such as the source of
a child’s expensive college
tuition, or the source for
frequent and presumably
expensive travel to the
United States.
Neither the INA nor the CFR sections that discuss EB-5
mention anything about administrative fees. The USCIS
Policy Manual says nothing about them, either. None of
the precedential decisions discusses them. 1
Since the authority is silent as to administrative fees, it
seems logical that sourcing administrative fees is not
strictly required. Nonetheless, sourcing these fees can be
an important credibility issue, and should be considered
on a case-by-case basis.
WHY SHOULD ADMINISTRATIVE FEES
BE SOURCED?
Nothing in the training materials at the Investor
Program Office (IPO) for professionals adjudicating
I-526 petitions direct that administrative fees be
sourced. But in some cases, it may be wise to do so.
IP O’s m a n ag e me nt a nd t r a i n i ng pr o g r a m s d o
uniformly stress the burden of proof. Indeed, there
i s a c re d ibi l it y e le me nt a sso c i ate d w it h e ver y
I-526 (and I-829). The investor must prove his or
her el ig ibi l it y by a prepondera nce of ev idence.
That mea ns t hat when a n i nvestor prov ides
a quest ion able col le c t ion of pro ofs, t he IP O
adjudicator may ask in a request for evidence (RFE)
for things that are not strictly required in order to
articulate in a denial why she or he does not believe
the petitioner’s evidence, or to provide assurance
that a contemplated approval is sustainable.
In fact, RFEs routinely request information not directly
related to the investment funds, such as the source
of a child’s expensive college tuition, or the source
for frequent and presumably expensive travel to the
United States. Lawyers representing investors typically
comply with these requests rather than fight about
them, but they reserve their rights in RFE responses,
sometimes aggressively. This is presumably to guard
against a denial based on the fact that the tuition,
for example, is not lawfully sourced. While it may be
sound practice to reserve rights, and pragmatic to
respond regardless of those rights, the adjudicator is
probably on firm ground when making the request for
the following reasons:
CREDIBILITY &
INDIRECT SOURCES OF FUNDS
W h i le t he l a ng u a g e e mplo ye d b y US C IS i n it s
var ious pol ic y adv ice is l i m ited to a t reat ment
of “c apit a l i nve s t e d” a nd s a y s not h i ng a b out
a d m i n i s t r at i ve fe e s, it d o e s s a y i n t he Pol i c y
Manual t hat, “[a]ny assets acquired direct ly or
indirectly by unlaw ful means, such as criminal
a c t i v i t y, w i l l n o t b e c o n s i d e r e d c a p i t a l . I n
establishing that the capital was acquired through
l a w f u l m e a n s, t h e i m m i g r a n t i n v e s t o r m u s t
prov ide ev idence demonstrat ing t he direct and
indirect source of his or her investment capital.” 2
A broad a nd encompassi ng defi n it ion of t he
phrase “indirect source” might include any means
employed by an investor whereby lawfully sourced
capital was made more available for investment by
the presence of unlaw fully obtained capital that
the investor uses for living expenses and support.
Such a definition begs the discussion of whether
money is fungible - a troublesome question which
has never been addressed by USCIS in any case or
policy paper that might be deemed binding on the
EB-5 industry.