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I submitted an EB-5 petition and received a request for evidence (RFE) from USCIS asking for financial records from 30 years ago. Is there a limit to how far back USCIS can trace the source of funds and request documentation? How might I respond?

By March 8, 2021March 18th, 2021EB-5 Visa, Immigration, Investor Visas

USCIS exercises broad discretion to require documentation that traces the source of funds pursuant to an immigrant visa application. However, there are options for effectively responding to requests for documents that are unavailable or that no longer exist.

Background

Various immigrant petitions, including the EB-5 investor visa, require substantial documentation that traces the funds being invested in the relevant enterprise from the moment the applicant received them. For example, if an applicant sold a business and used those funds to invest in an EB-5 eligible investment, USCIS would typically require that the applicant provide documentation that shows the value of the business leading up to its sale, the sale itself, the transfer of the funds into the applicant’s possession, and the later transfer of those funds into the EB-5 enterprise. For more information on the source of funds requirement, see here. For additional information on the EB-5 immigrant visa generally, see here.

USCIS has made clear its position that there is no general limit on the timeframe in which it can request documents showing the source of funds. Instead, USCIS takes the position that such documentation is evaluated on a case-by-case basis. In other words, while someone who sold a business two years ago might only need to provide documentation that covers two years, USCIS may require an applicant who sold a business 30 years ago to provide documentation that spans decades.

Where does USCIS get the authority to require documentation over such a long period of time?

U.S. immigration law specifically states that money invested in order to qualify for an immigrant petition cannot have been received through “unlawful means.” Indeed, Congress has clearly expressed its intent that a visa application be terminated the moment it “becomes known to the Government that the money invested was obtained by the alien through other than legal means (such as money obtained through the sale of illegal drugs).”

To this end, federal regulations at 8 CFR 204.6 state that the immigrant petition must be accompanied by, among other things, evidence showing “that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means.” This includes evidence “identifying” any sources of capital. In addition, “he petitioner may be required to submit information or documentation that the Service deems appropriate in addition” to evidence that is specifically required.

However, the authority of USCIS to require supporting documentation is not without limit. First, the regulations place a five-year limit on tax returns. Second, the expectation of USCIS that documents from decades past should be maintained is inconsistent with the government’s own document retention policies (which are typically limited to three years, or no more than 7 years for certain tax documents). Finally, although the applicant bears the burden of proving that their petition should be approved, the standard they must meet is that the claims they make be “more likely than not.” This is called “preponderance of the evidence.” In other words, as explained in the USCIS Policy Manual, “even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is ‘probably true’ or ‘more likely than not,’ then the benefit requestor has satisfied the standard of proof.” There is, therefore, a good argument to be made that requiring applicants to submit financial records that are decades old is far beyond the applicable standard of proof.

What if the documents requested no longer exist?

In light of the broad authority USCIS believes it has to require documentation, the best approach when responding to an RFE is to provide the requested documents. We refer to the documents requested by USCIS as “primary evidence.” The federal regulations make clear that “he non-existence or other unavailability of required evidence creates a presumption of ineligibility.” Therefore, even if you think the documents do not exist, take steps to confirm – and, as will be explained further below, be sure to document these steps.

If, after taking reasonable steps to find the requested documents (the “primary evidence”) you conclude that they no longer exist, the federal regulations at 8 CFR 103.2(b)(2) fortunately provide alternatives.

As you read through the following options, keep in mind that the categories of evidence are not exclusive. In other words, instead of simply providing secondary evidence, consider submitting secondary evidence and affidavits and evidence that the documents requested do not exist. This is an instance where you want to think broadly and creatively about how to convince the government that it has the information it needs, even if the primary evidence is unavailable.

The first category of documents you might provide in order to satisfy the government’s request for documents is secondary evidence. For example, if you are unable to provide tax records showing the value of the business that was sold, you might instead provide articles from local newspapers that speak to the value of the business. Think creatively and broadly about what secondary evidence might be available to show what the government is asking for, and consider providing multiple pieces of secondary evidence.

I could not find any secondary evidence. What options do I have?

If both primary and secondary evidence are unavailable (or, if you did find secondary evidence and wish to bolster it), the regulations suggest that you may provide affidavits. Affidavits are written statements signed under oath (typically in the form of being notarized) by people who have first-hand knowledge of the relevant information. In our example of the business sale, the applicant might provide an affidavit from the lawyer who oversaw the transaction. Additional affidavits are also valuable — perhaps, for example, an additional affidavit can be provided by the banker who transferred the funds. As with secondary evidence, this is an opportunity to think creatively and broadly.

I have not been able to get affidavits or secondary evidence. Are there any options that remain?

The federal regulations state that the applicant may provide to USCIS evidence that the primary documents are not available. It is preferred that this be in the form of a written statement from the relevant government or authority (for example, the local tax agency or bank) that states why the document does not exist and whether any similar records exist. For example, it may be that local laws do not require documents to be preserved as far back as the requested document; or, perhaps the requested document never existed in the first place.

I cannot get a written statement from the authority demonstrating that the document is not available. Is there anything else I can provide?

When an applicant is unable to get a certification from the foreign authority stating that the requested documents do not exist, the regulations permit the applicant to submit “evidence that repeated good faith attempts were made to obtain the required document or statement.” This is a final option, and is a relatively weak way to respond to the government’s request for evidence. As a result, it is important to take repeated steps to acquire the requested documents, any secondary evidence, affidavits, and, if the requested documents are unavailable, a written statement from the foreign authority explaining why the documents are unavailable. For each of these steps, provide evidence that the step was taken — including copies of emails sent and notes from calls made.

Remember that the categories of evidence listed above are not exclusive. Again, when the documents requested by USCIS are unavailable, it is important to think broadly and creatively about how to satisfy the government’s request through other means. Consider combining secondary evidence with affidavits from individuals who have first-hand knowledge of the information, and also including a statement from a local authority stating that the requested document is not available.

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