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.
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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.