The USCIS Adjudicator’s Field Manual outlines the burden of proof and standards of proof for all USCIS officers in the adjudication of immigrant petitions. The manual, which is binding on all USCIS officers, states that an applicant has the initial burden of proving eligibility. The applicant must first establish that he or she is eligible for the benefit they are seeking. The petition is then reviewed to determine if the applicant has met the standard of proof. Unless specified by law, all EB-5 applicants must satisfy the “preponderance of the evidence” standard of proof. According to USCIS, this means that applicants must show that what he or she claims is more likely so than not so to meet the standard of proof. All doubt need not be removed from the adjudicator’s mind. USCIS further explains that if the applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is “more likely than not” or “probably true,” then the standard of proof has been satisfied. So in preparing a source of funds analysis or an initial application for regional center designation it is important to note that an absence of certain things—say a single bank transaction—may not prove fatal to a petition if everything else supports the fact that the money was more likely than not earned in a lawful manner.
Those cases that are held to a higher standard of proof, as specified by law, are held to a standard known as “clear and convincing evidence” proof. In other words, cases cannot be held to the “clear and convincing evidence” standard unless specified by law. The “clear and convincing evidence” standard requires the adjudicator to believe the claims made by the applicant are “reasonably certain” or “highly probable.” In fact, this is akin in many ways to a beyond a reasonable doubt standard.
In practice, it appears that USCIS, in its administration of the EB-5 program, has become more stringent in its review of applications. Often requests for evidence or notice of intent to deny seem to propose that the applicant did not meet a clear and convincing standard. In this case, it is important for counsel to remind USCIS that the correct standard of proof in EB-5 related applications is preponderance of the evidence.