Why the Battineni Decision Is No Reason to Relax on EB-5 Source of Funds
November 25, 2024 · 5 min read
Documenting an EB-5 source of funds is one of the hardest parts of preparing a petition. The 2024 decision in Battineni v. Mayorkas may help curb unreasonable source-of-funds demands from U.S. Citizenship and Immigration Services (USCIS), but an EB-5 petition still has to meet the full documentary standard.
Documenting an EB-5 source of funds is one of the hardest parts of preparing an EB-5 petition. The 2024 decision in Battineni v. Mayorkas may help curb unreasonable source-of-funds demands from USCIS, but a petition still has to meet the full documentary standard. Investors should keep this ruling in perspective: it is neither a reason for complacency nor a sign that the EB-5 source-of-funds standard is about to become simple.
In Battineni v. Mayorkas, decided by the U.S. District Court for the District of Columbia in October 2024, the court vacated one of the two USCIS denials at issue, each of which had been based on the finding that the investor failed to provide sufficient evidence of the lawful source of his EB-5 investment capital.
After several Requests for Evidence (RFEs), the investor documented that his investment funds came from the sale of his company, and that the capital originally used to start that company came from a loan. USCIS nevertheless took the position that this was not enough, and required him to go further and document the lawful source of funds behind that start-up loan. The court ultimately held that this demand was unreasonable and went beyond what the regulations require: a petitioner must document the source of funds used directly for the EB-5 investment, their ownership of that capital, and the lawful means by which it was obtained.
For years, USCIS has drawn criticism for scrutinizing EB-5 investors’ source of funds too aggressively and insisting that every penny be traced back to its origin. Battineni gives investors persuasive authority to cite when pushing back. It does not, however, mean that documenting an EB-5 source of funds has become any easier — it simply strengthens an investor’s position when USCIS asks for detail that goes beyond what the program requires. It is also worth noting that this is the ruling of a single federal district court, so USCIS is not nationally bound to follow it.
At the same time, the case shows how strict and granular USCIS’s review of EB-5 petitions has become. EB-5 investors should therefore prepare their files carefully and thoroughly, meet the program’s documentary standards, and do as much as they can to avoid being flagged for the kind of heightened scrutiny the petitioners in Battineni faced.
If you are considering a U.S. green card through the EB-5 Immigrant Investor Program, speak with an advisor at IMM Group or leave your details below. Our experienced advisory team will walk you through the requirements in detail and help assess the prospects of your case. We are committed to keeping your personal data confidential and will use the information you provide only to advise on your family’s case.
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