EB5 Investors Magazine Volume 2 Issue 2 | Page 34

Kate’s Corner A Long Road to EB-5 One Investor’s Journey by Kate Kalmykov and Dillon Colucci A successful journey for an EB-5 investor can be long and bumpy as he or she works to overcome three distinct hurdles: the I-526 Immigrant Petition for Alien Entrepreneur, the immigrant visa application or adjustment of status (green card application), and finally the I-829 Petition to Remove Conditions of Residency. Each stage presents its own challenges for the investor and the attorney working on the case. In this edition of Kate’s Corner, we present one particular case to provide a window into these challenges, including source of funds obstacles, security clearance delays, and being the last investor in a project to file an I-829 petition. This particular EB-5 case began its journey in 2006, prior to the exponential growth of EB-5. The EB-5 applicant was a native of the Middle East, an area of the world that was enduring multiple armed conflicts and so his case posed a unique set of challenges. Nonetheless, this example sheds light on many challenges commonly faced by applicants and their counsel. While this case is not representative of all EB-5 cases, there are general lessons to be learned from this investor’s experience and success. 32 The I-526 petition Documenting a legal source of funds is a key component of any investor’s I-526 petition. Due to the circumstances in his country, the investor’s business that served as the source of his investment was destroyed in an explosion—along with most of his records—significantly impacting his ability to adequately document the source of his funds in a straightforward manner. Before he could file his I-526, the investor had to find alternate means to prove his lawful source of funds. By showing evidence of the bombing with news reports and maps, along with recreated banking records from outside sources, the investor was able to meet the preponderance of the evidence standard to show the lawful source of funds. The lesson: As EB-5 attorneys have discovered, confronting challenges is part and parcel of EB-5 practice. This case is a perfect example of the necessity to think outside of the box and to employ creative lawyering when presenting source of funds evidence. The application must meet the standard of proof stipulated by USCIS and argue that the evidence shows it is more likely than not that the source of funds is lawful, but do not let difficult situations limit you; there may be third party sources of evidence that can help establish the case. Such strategies led to the approval of this investor’s I-526 petition. E B 5 I n v e s to r s M ag a z i n e