different in the EB-5 context, where forms I-526, I-829
and I-924 expressly require the applicant to certify,
under penalty of perjury, that the information in the
petition, application, and all supporting evidence is “true
and correct.”
While it may seem obvious that telling the truth in an
EB-5 petition is important, it bears emphasis that an
express determination of fraud or willful misrepresentation
not only could prevent the immigrant investor from
being able to satisfy the EB-5 regulatory and statutory
criteria, but could also directly impair his or her ability
to establish admissibility into the United States, forever
foreclosing avenues to immigration.
In the most egregious cases, immigration fraud can
lead to criminal charges. These concepts equally apply
to Regional Centers, who must maintain credibility to
receive designation and exemplar approvals.
Beyond truthfulness, however, credibility also encompasses
the concepts of believability and reasonableness. Take,
for example, a scenario where an immigrant investor
submits a letter from his or her former employer that
attests to the investor’s tenure and compensation
level at the company. The factual statements in the
letter may be true, but USCIS might cast doubt on the
employer’s account because the letter itself might not
bear some independent indicia of reliability. We have
seen this common scenario amongst Chinese investors,
for instance, where they neglected to include company
letterhead, contact information, the signator y’s
business card and other substantiation. In this example,
an attorney’s baseline assumption that the client is
presenting truth is usually insufficient to establish the
credibility of the representations in the eye of the USCIS
adjudicator without some additional objective evidence.
USCIS has broad latitude to question the credibility
of representations relating to the qualifying project
or the immigrant investor’s source-of-funds. In this
regard, we have seen USCIS adopt three approaches:
identifying inconsistencies or discrepancies within
and among the documents in the EB-5 filing; noting a
lack of corroboration to support the alleged facts or
discounting submitted evidence as unsubstantiated or
unreliable; and in severe cases, expressly determining
that the information presented is fraudulent or willfully
misrepresented, sapping the credibility of the investor in
every context.
Making matters potentially more complicated is the
fact that USCIS’ review is not necessarily limited to the
“four corners” of an EB-5 filing. Rather, it can and does
encompass extra-record information that the agency
obtains through its own independent research. It is no
secret that USCIS performs basic internet searches in
EB-5 adjudications. It also, sometimes in conjunction
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