EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 33

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