Most Importantly, the EB-5
Submission Must Be Credible
A look at what challenges EB-5 investors and applicants may face
when it comes to demonstrating that their filings are credible.
By Matthew T. Galati and Walter S. Gindin
E
B-5 submissions tend to be some of the most heavily
worded and annotated of all immigration filings.
Beyond the significant information submitted in support
of th e qualifying project, immigrant investors also must
produce a myriad of documentation to demonstrate the
lawful source and path of their investment capital.
Given the breadth of representations and documentary
evidence that is typically produced as part of an EB-5
filing, it is not surprising that the U.S. Citizenship and
Immigration Services (USCIS) is closely scrutinizing the
record and increasingly performing
credibility-based assessments
to determine whether investors
have satisfied the statutory and
regulatory requirements of the
EB-5 program.
Balancing this need to ensure a credible submission with
the clients’ desire to file quickly is key to competently
representing clients in EB-5 filings.
But USCIS’ approach to EB-5 petitions and applications
is nothing new and we find it important to examine and
draw lessons from an area of immigration practice
where credibility determinations are quite common
and have yielded a sizeable body of federal case law –
namely, immigration proceedings involving applications
for asylum and related relief that are governed by the
Real ID Act.
"...It is conceivable
that any
inconsistency could
“open the door” to
increased scrutiny
or doubt of the
entire record."
Recall that in Matter of Ho, the
Administrative Appeals Office
stressed that, “most importantly,
the business plan must be credible.”
USCIS in practice prioritizes a
credibility-based assessment to
every other exhibit in the EB-5
submission. While it would be
extremely rare to have a client apathetic to making
truthful representations, many do not understand how
critically important it is to satisfy such credibility-based
assessments.
Indeed, the immigration attorney must maintain a
fanatical devotion to ensuring the petition is presented
consistently and substantiated across thousands of
pages, often requiring monotonous, time-consuming
work on the part of the investors and their legal
representatives.
25
EB5 INVESTORS M AGAZINE
Of course, very few EB-5 cases
end up in immigration court, and
those that do are usually in the
context of a denied form I-829 and
referral to removal proceedings.
Nevertheless, because there has
been USCIS’ EB-5 adjudications
that invoke language questioning
credibility that is similar to the
types of considerations that arise
in immigration court proceedings,
there are important lessons to
the EB-5 practitioner that can be
gleaned from federal case law interpreting the Real ID
Act’s credibility amendments.
CREDIBILITY-BASED ASSESSMENTS
IN EB-5 ADJUDICATIONS
Credibility is a multifaceted concept that underlies most
requests for immigration benefits and relief. At its core,
the term means truthfulness both in oral or written
representations before an adjudicative body. This is no