sufficiency of the remaining evidence in the record.
Therefore, it is conceivable that any inconsistency could
“open the door” to increased scrutiny or doubt of the
entire record. Second, when USCIS does identify specific
inconsistencies, it has typically afforded opportunities
to explain and reconcile the discrepancies in the record
in advance of its ultimate disposition of the case.
We note, however, that like an IJ in immigration
proceedings, USCIS has
broad discretion to accept
or reject an explanation for
an alleged inconsistency.
Accordingly, it is important
that any such explanation
be supported by objectively
reasonable evidence pointing
to where the tru th lies.
Attorneys are generally not in
the business of representing
clients who affirmatively lie to
USCIS. However, mistakes
happen that could lead to an
inference of untruthfulness.
or NOIDs the types of evidence that may be sufficient to
bolster a contested or unsubstantiated claim.
Federal case law counsels that, in addition to explaining
why such evidence is unavailable, the EB-5 petitioner
or applicant should also support the explanation with
some objective evidence as to why this unavailability
is reasonable under the circumstances. If it turns out
that the evidence requested by USCIS is unavailable,
th e re g ula tio ns re quire
independent substantiation
of unavailability.
"USCIS typically
identifies in RFEs and/
or NOIDs the types
of evidence that
may be sufficient to
bolster a contested or
unsubstantiated claim."
For example, discrepancies can arise from scriveners’
errors: a document may not be translated properly
and an inconsistency in the documentation slips past
the attorney prior to filing. Or, third parties attempting
to bolster an applicant’s background, may misstate a
fact that contradicts other materials. In such a case,
it is therefore critically important to have an unbiased
perspective with some authority to review the evidence
submitted and reconcile the apparently contradicting
materials that should not have been considered for
adjudication in the first place.
DEALING WITH ALLEGATIONS OF
INSUFFICIENT CORROBORATION IN
EB-5 ADJUDICATIONS
Similar to applicants in immigration proceedings,
an EB-5 petitioner’s or applicant’s failure to submit
corroborating evidence could undermine their credibility,
and, by extension, could prove fatal to their claim.
As seen in the context of the Real ID Act amendments,
USCIS can raise the issue of corroboration in the
EB-5 context either when credibility has already been
called into question – such as where there are noted
inconsistencies in the record – or where documentation
that can be reasonably expected to be available is
missing from the record.
In both scenarios, USCIS typically identifies in RFEs and/
The same approach holds
where the EB-5 petitioner
or applicant knows at the
outset that they will not be
able to provide a key piece of
documentation that USCIS
might reasonably expect
to be included in the filing;
here, there may be good
justification to proactively
explain and support such evidentiary lapses.
For example, imagine an investor’s source of funds
involves a gift from a parent whereby the funds earned
originate from a business with corporate documentation
– primary evidence of the lawfulness of the source of
funds – is protected by confidentiality provisions.
In such a case, the petitioner must still meet her burden
of proving the gifted funds were lawfully earned and to
utilize secondary evidence, media reports, letters from
customers, unprivileged communications from counsel,
etc. as available.
As mandated in the regulations referenced above, third-
party affidavits must overcome any unavailability of
secondary evidence.
Further, one must also consider that many investors
come from countries with histories similar to that of
Vietnam, where the use of banking institutions and
comprehensive record keeping is relatively recent. As
USCIS adjudicators are by definition Americans, it is
important to remind them of country conditions, as well
as providing historical contexts for why contemporary
documents might not be available or were not produced
due to war, disasters or civil strife, etc.
It is clear that proving eligibility requires only a preponderance
of the evidence. Applicants, investors, and their attorneys
must be prepared to argue this proactively with EB-5
submissions, and not only in response to an RFE or NOID.
Another important consideration is the evidentiary value
of the documentation submitted in support of an EB-5
EB5INVESTORS.COM
32