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.
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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