EB5INVESTORS.COM 71 routinely request “ ...RFEs information not directly related to the investment funds, such as the source of a child’s expensive college tuition, or the source for frequent and presumably expensive travel to the United States. Neither the INA nor the CFR sections that discuss EB-5 mention anything about administrative fees. The USCIS Policy Manual says nothing about them, either. None of the precedential decisions discusses them. 1 Since the authority is silent as to administrative fees, it seems logical that sourcing administrative fees is not strictly required. Nonetheless, sourcing these fees can be an important credibility issue, and should be considered on a case-by-case basis. WHY SHOULD ADMINISTRATIVE FEES BE SOURCED? Nothing in the training materials at the Investor Program Office (IPO) for professionals adjudicating I-526 petitions direct that administrative fees be sourced. But in some cases, it may be wise to do so. IP O’s m a n ag e me nt a nd t r a i n i ng pr o g r a m s d o uniformly stress the burden of proof. Indeed, there i s a c re d ibi l it y e le me nt a sso c i ate d w it h e ver y I-526 (and I-829). The investor must prove his or her el ig ibi l it y by a prepondera nce of ev idence. That mea ns t hat when a n i nvestor prov ides a quest ion able col le c t ion of pro ofs, t he IP O adjudicator may ask in a request for evidence (RFE) for things that are not strictly required in order to articulate in a denial why she or he does not believe the petitioner’s evidence, or to provide assurance that a contemplated approval is sustainable. In fact, RFEs routinely request information not directly related to the investment funds, such as the source of a child’s expensive college tuition, or the source for frequent and presumably expensive travel to the United States. Lawyers representing investors typically comply with these requests rather than fight about them, but they reserve their rights in RFE responses, sometimes aggressively. This is presumably to guard against a denial based on the fact that the tuition, for example, is not lawfully sourced. While it may be sound practice to reserve rights, and pragmatic to respond regardless of those rights, the adjudicator is probably on firm ground when making the request for the following reasons: CREDIBILITY & INDIRECT SOURCES OF FUNDS W h i le t he l a ng u a g e e mplo ye d b y US C IS i n it s var ious pol ic y adv ice is l i m ited to a t reat ment of “c apit a l i nve s t e d” a nd s a y s not h i ng a b out a d m i n i s t r at i ve fe e s, it d o e s s a y i n t he Pol i c y Manual t hat, “[a]ny assets acquired direct ly or indirectly by unlaw ful means, such as criminal a c t i v i t y, w i l l n o t b e c o n s i d e r e d c a p i t a l . I n establishing that the capital was acquired through l a w f u l m e a n s, t h e i m m i g r a n t i n v e s t o r m u s t prov ide ev idence demonstrat ing t he direct and indirect source of his or her investment capital.” 2 A broad a nd encompassi ng defi n it ion of t he phrase “indirect source” might include any means employed by an investor whereby lawfully sourced capital was made more available for investment by the presence of unlaw fully obtained capital that the investor uses for living expenses and support. Such a definition begs the discussion of whether money is fungible - a troublesome question which has never been addressed by USCIS in any case or policy paper that might be deemed binding on the EB-5 industry.