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RFE - Burden of Proof & Standard of Evidence

For immigrant petitions, including I-526s and I-829s, the applicable burden of proof is on the petitioner or applicant by “preponderance of evidence” standard of evidence, while in removal proceedings for I-829s, the burden of proof is on USCIS by the same “preponderance of evidence”. Need to keep in mind that the “preponderance of evidence” requires just more than 50% chance that something is more likely than not — which is a lower standard of evidence than the “substantial likelihood” or “clear evidence”, which is often the actual standard of evidence that USCIS examiners wish to, and actually do, impose. Basically, it helps to have a “reasonable” USCIS examiner reviewing your EB-5 case. If a particular USCIS examiner is insistent on applying the “clear evidence” or even the “beyond reasonable doubt” standard of evidence, your client will be fighting an uphill and a losing battle.

Even AAO precedent decision found that “preponderance of the evidence” is the burden of proof in administrative immigration proceedings, except where a different standard is specified by law. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).

EB-5 practitioners need to be aware of a myriad of RFE and NOID issues and procedures, as well as be able to make cogent arguments in this complex field.

There are too many things to know to make a living practicing EB-5 law! RFE related memos — reserved for internal research purpose.

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