EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 34

petition or application. Similar to an IJ in immigration proceedings, the probative weight afforded to evidence submitted with an EB-5 filing is largely within USCIS’ discretion. We have seen the agency question the reliability of documentation that it perceives as self-serving – particularly where representat ions are from a party with a direct stake in the outcome of the case. In these instances, it can be beneficial to reinforce the documentation with additional objective and compelling factors. For example, in the context of an EB-5 project, it is often necessary to reinforce a project budget and timeline prepared by a developer with an independent third-party attestation as to the reasonableness of the assumptions in light of the scope of the intended development and/or industry standards. Similarly, in the context of an investor’s source of funds, where independently audited company financials may not be available, it is critically important to substantiate the company’s capacity to lawfully earn profits through customer contracts, bank account statements, marketing materials, client lists, and other primary documentation generated in the normal course of business. 33 EB5 INVESTORS M AGAZINE Third-party testimonials, providing tertiary evidence, can further bolster an investor’s bona fides but are generally not in-and-of-themselves sufficient substitutions. USCIS’ adjudications of EB-5 petitions and applications can be unpredictable. Sometimes the agency misapplies statutory and regulatory authority, as well as deviates without forewarning from established policy. Nevertheless, the presentation of the facts is at least one aspect of an EB-5 filing that is entirely within a petitioner’s and applicant’s control. Accordingly, it is critical to conduct an exacting review of all evidence comprising an EB-5 petition and application to ensure internal and external consistency. Additionally, it is important to adopt a “devil’s advocate” approach to the documentation and consider what if any evidentiary gaps exist in the filing. Anticipating USCIS’ evidentiary concerns and addressing them in an objective and reasonable manner could preempt follow-up inquiries challenging the credibility of the submission.