EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 27

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 EB5INVESTORS.COM 26