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< Back to current issue of Immigration Daily

From Theory to Practical Application in EB-5

by Joseph Whalen

Evidence Basics

The requirements and qualifications for any benefit, or form of relief, whether an entitlement or bestowed through a favorable exercise of discretionary authority, under the immigration, nationality, citizenship, and related laws of the United States must be proven through the submission of sufficient evidence. The forms that that evidence may take can range far and wide. Evidentiary requirements may be static, as in unchanging; narrowly defined and tightly confined; or they may be vague and hard to figure out, in other words; fluid, dynamic, or esoteric. The vast majority of evidence utilized in this realm of INA and related adjudications is documentary. In certain specific contexts under the INA and related laws, evidence may take additional forms. These include: oral and written, direct-personal or paid-expert testimony; or medical testing, such as: blood tests, DNA mapping; or even a broad range of forensics: determining the age of a "foundling" or "orphan" by measuring bone, hair, and dental growth rates; or authenticating a "certificate". The adjudicator (an IJ or interviewing Officer) might be heavily influenced by body language, candor, tone of voice, or other subtle indicators of demeanor. Lastly, newly prepared specialist or "expert" testimony and accompanying written reports may be offered in evidence. For cases within the EB-5 realm, business modeling and economic theory become very influential on the outcome.

Applying Theory When Creating Supporting Evidence

As indicated above, some of these "other forms of evidence" will result in written reports submitted as supporting evidence. Much of that evidence will be obtained by hiring the needed expert to write something for a specific purpose. For example, an EB-5 Business Plan (BP) needs to conform to the specifications in Matter of Ho, 22 I&N Dec. 206 (AAO 1998) as well as the relevant statutory and regulatory provisions. An EB-5 BP is a foundational document upon which an economist will rely in order to perform and write-up an accompanying Economic Analysis (EA). The economist must also be provided with "specifications" as to the elements that must be addressed as per statute and regulations. When these two extremely important players are not sufficiently informed of what their individual "work products" (BP & EA) must entail and encompass in order to serve their EB-5 purposes, that situation will at least slow the adjudication process with RFEs or lead to denial by USCIS.

Probing the Evidence & Questioning Witnesses

EOIR produces a newsletter entitled: "Immigration Law Advisor" here is a small excerpt from vol. 5 no. 6 (July 2011)[1], wherein the lead article is: "The Quality That Makes Something Worthy of Belief: REAL ID Credibility Standards and the Parameters of Plausibility Findings" by Michele D. Frangella.

"Reasoning is valid, cogent, and specific when it is based on permissible inferences. Permissible inferences are those which are drawn from and tethered to a properly developed record. Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989) (stating that a full examination of an applicant is "essential"). In Li v. Mukasey , 529 F.3d 141 (2d Cir. 2008), the alien claimed that she was persecuted in China on account of being a practitioner of Falun Gong. Although the Immigration Judge found the respondent's testimony to be "extremely vague and general," neither the court nor counsel for the Government elicited further testimony from the respondent to fill in the factual gaps. The Second Circuit held that vague testimony alone cannot support an adverse credibility finding unless an attempt is made to solicit further detail from the applicant." At p. 3

USCIS, like any administrative agency, is required to be fair in its adjudications. An adjudicator cannot neglect to ask about an issue and then use the "failure" to prove something based on that issue as a basis for denial. Both the BIA and AAO have reversed and remanded cases in such situations. Courts have reversed those administrative appellate bodies when they have missed that type of mistake or made it themselves.

Building the Record of Proceeding (ROP)

Anyone who has ever had any dealings with USCIS is likely familiar with the concept of a "Request For Evidence" (RFE). In general, most USCIS forms include comprehensive instructions detailing the minimal initial evidence required to be included at time of filing. If initial evidence is insufficient to establish prima facie eligibility, USCIS is usually not obligated to request any further evidence and may deny a case. This is especially appropriate when the evidence offered shows ineligibility. Few things in life are so crystal clear that the question of eligibility or certain ineligibility can be determined based solely upon the record at time of filing. With that said, if an underserved interim benefit would flow from the mere filing and acceptance of a form, do not expect to receive the "benefit of the doubt" based on a skeletal filing. Instead, you can expect a denial or rejection based on a firm procedural stance. USCIS is within its rights to deny or reject a case based on that rigid procedural stance. However, depending on the specific circumstances, USCIS might issue an RFE or even a Notice of Intent to Deny (NOID) instead. Any such RFE or NOID should clearly state the deficiencies in that case as well as in the evidence submitted so far, and that the failure to correct the deficiencies and/or supplement the record with needed evidence will result in denial.

Evidence Standards

Once evidence has been offered and accepted, it must be evaluated and weighed under the correct standard of proof. In general, and unless stated otherwise, cases adjudicated under the various provisions of the INA and related laws are required to be decided based upon the "preponderance of the evidence" standard of proof. Persons seeking some benefit or relief under the INA need to meet that minimum in most cases. The various standards of proof and burdens of proof can sometime confuse people. While the "preponderance of evidence" is generally applicable, it is not a 100% catch-all standard. Sometimes eligibility demands "specific evidence" just to meet the "burden of proof" related to some aspect of the case whether within an overall preponderance of the evidence standard or the "clear and convincing" standard.

Even when it is clear which standard applies to a case, certain related issues can still leave one confused. Continuing with the EB-5 context as an example: What constitutes a "reasonable methodology" for determining "indirect job creation" and "other positive economic effects"? EB-5 is also extra complicated because of its multiple steps. There is a statutory provision for an EB-5 visa which lists specific requirements for obtaining the classification. Obtaining that classification is a preliminary step.

Currently, the vast majority of EB-5 visas are issued to aliens who are affiliated with a Regional Center. The Regional Center designation is obtained from an even earlier and quite separate adjudication process that does not involve anyone seeking an EB-5 visa. The Regional Center sets the stage for its alien investors to make qualifying pooled investments in support of their individual preference visa petitions. Then there are additional steps for the alien. The approved EB-5 classification petition allows the alien to apply for an immigrant visa abroad or adjustment of status domestically. They get conditional status and have to get the conditions lifted nearly two-years after that. It is a 2.5 to 3.5 year+ journey.


1 See


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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