EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 26

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