By Kristi Ngo, Catharine Yen, and Phuong Anh Tran
In the last few years, the U.S. has seen a significant increase in interest in EB-5 visas from Vietnam, resulting in more I-526 petitions filed by Vietnamese nationals. Many I-526 petitions from Vietnam involve the use of cash, gold, and/or the purchase and sale of real estate. This article explains the prevalent cash and gold culture that has permeated throughout Vietnam, and how to explain and document this cultural practice in an I-526 petition. This article also explains the real estate system in Vietnam as it relates to filing an I-526 petition. There are various ways that Vietnamese nationals receive or purchase real estate and potential issues for which immigration attorneys should look out. With a more in-depth understanding of the history and background of this Vietnamese practice, immigration attorneys can prepare more successful I-526 petitions for their Vietnamese investor clients.
INCREASING DEMAND IN EB-5 VISAS FOR VIETNAMESE NATIONALS
Vietnamese demand for U.S. visas remains robust given Vietnam’s high regard for the educational opportunities, healthcare services, Social Security benefits and environmental safety in the United States. The ongoing political instability in Vietnam and growing financial resources of Vietnamese nationals have created a strong environment for U.S. immigration. The growing population of Vietnamese-Americans in the U.S. also adds to the appeal of Vietnamese nationals desiring to immigrate to the U.S.
Thus, interest in the EB-5 program has substantially risen in last several years as more and more Vietnamese nationals become aware of the program’s existence. Initially, misinformation and bad players involved with EB-5 created suspicion toward the program, but the recent wave of I-829 approvals for Vietnamese nationals has validated the program’s legitimacy and effectiveness. In 2017, Vietnam had the second highest number of nationals who obtained permanent resident status in the U.S. through the EB-5 program. Additionally, Vietnam and Brazil were among the top countries with the greatest increase in EB-5 visas issued between 2016 and 2017.
Vietnam’s steady economic development has made EB-5 investment feasible for an increasing number of its nationals. Vietnam’s GDP per capita growth has stabilized at an annual rate of 6.4 percent per year since 1990 and hit 6.81 percent in 2017. Vietnam is among the fastest growing of the world’s economies, and at this rate, Vietnam’s economy would become the 20th largest in the world by 2050.
DOCUMENTING SOURCE OF FUNDS: OVERCOMING VIETNAM’S CASH- AND GOLD-BASED SYSTEM
Despite the high demand for EB-5 visas by wealthy Vietnamese individuals, Vietnam has yet to reach China’s formalized structure for EB-5 filings. Documenting the lawful means of investment capital can be difficult for many Vietnamese investors and their immigration attorneys. Although real estate ownership is the most prevalent financial resource of wealthy Vietnamese investors, it is an underutilized SOF story. This is due to many investors’ difficulty documenting their property ownership because of Vietnam’s long-stemming cash habit and lack of realty records.
Many Vietnamese investors use cash and/or gold in the purchase and construction of real estate. As USCIS adjudicators are generally unfamiliar with Vietnamese financial customs and practices, it is imperative to lay this groundwork in the I-526 petition by including newspaper and research articles that document this cultural practice.
Vietnam is widely a cash-based society, which occasionally turns the tracing of lawful funds into a Herculean task. According to 2014 study, only 30 percent of Vietnamese nationals have bank accounts, and even fewer are estimated to be using banking services regularly. This is due to following facts: access to banks outside of major Vietnamese cities is limited, costs of banking services are high, and e-payment technology and infrastructure are underdeveloped. There is consequently a lack of confidence in the banking and e-payment system among Vietnamese people. Therefore, as Vietnamese law does not require financial transactions to be performed through formal banking institutions, cash is used in the vast majority of financial transactions.
Gold also plays an important role in Vietnam’s economy. Not only is it a very popular investment, but gold is also acknowledged as a type of currency. Up to the 1990s, gold was used as a medium of exchange and unit of measurement in Vietnam. For example, Vietnamese records may state a property’s value in taels of gold instead of Vietnamese dong.
Given this cash- and gold-reliant system, many Vietnamese investors may have little to no documentation evidencing actual payment for the purchase of real property, such as wire receipts and bank statements. However, immigration attorneys should not underestimate the importance of this step when tracing the lawful source of funds. The issuance of a request for evidence (RFE) is almost certain if USCIS adjudicators are left to presume the link between the sale purchase agreement and the real property transfer. Although payment records are not always available to investors, certificates evidencing tax payments for the property purchase are good evidentiary alternatives and should be corroborated by the investor’s declaration stating the source and method of payment. Furthermore, if gold taels were used in the purchase or sale of real estate, it is beneficial to provide a conversion chart of gold into cash currency, as this concept remains foreign to many USCIS adjudicators.
THE MOST COMMON SOF STORY: REAL ESTATE OWNERSHIP
Vietnam has undergone extensive real estate development in the last few decades. Consequently, land received or purchased years prior will often involve much later building construction. Property records may reflect ownership of land, but not of the real estate as a whole. Investors should be advised to fully document construction permits and construction completion, as well as validate the real estate’s value.
The document most analogous to a U.S. grant deed is a Vietnamese certificate of house ownership and land- use right. This document offers various details regarding the real property, including the size and location of land, the basis for ownership and the value of the property. It is prudent for immigration attorneys to meticulously examine housing certificates to confirm the address, as the property address occasionally changes through government land reorganization. Also, certification from the local government verifying the change of property address should be produced as part of the I-526 petition. These are called “Decisions of House Number Issuance” and are typically available from local city or town archives. Another practice tip: Investors may need to apply to the local government for certification of updated property rights.
Additionally, attainment of real property without payment is more common in Vietnam than in the U.S. Vietnam state employees may be granted land as a bonus for their long history of government service. Vietnamese individuals may also derive ownership rights from prior use of barren land before 1993, a concept similar to adverse possession. In these circumstances, immigration attorneys may wish to seek written legal opinions from local Vietnamese counsel to support the basis of the investor’s real property ownership. Given the foregoing circumstances, it is helpful to remind USCIS that the legal standard in EB-5 adjudication is “preponderance of the evidence,” meaning that the cumulative evidence must only need to show that it is “more likely than not” that the investor has legal ownership over the pertinent real property.
Due to Vietnam’s cash- and gold-based society, tracing legitimate source of funds relating to real estate may remain problematic for Vietnamese investors and their attorneys for years to come. Nevertheless, understanding Vietnamese financial customs, as well as knowing and identifying the available documents that can be provided to USCIS, is key to the preparation of an approvable case.
 There are over two million people of Vietnamese descent living in the U.S., U.S. Census Bureau, 2016 American Community Survey 1-Year Estimates, American FactFinder, 2016.
 U.S. Department of State, Report of the Visa Office, Table V Immigrant Visas Issued and Adjustment of Status Subject to Numerical Limitations (by Foreign State of Chargeability), Part 3: 2017.
 General Statistics Office of Vietnam, GDP Growth Rate of 2015, 2015,
 Pricewaterhousecoopers, The World in 2050, February 2017.
 The World Bank, Financial Inclusion Data / Global Findex (Vietnam), 2014.