Process and timing

Preponderance of the evidence

Also called preponderance standard, more likely than not.

Preponderance of the evidence is the standard of proof in EB-5: the investor must show each element of eligibility is probably true, more likely than not, which USCIS reads as a greater than 50 percent chance. It is a far lower bar than proof beyond reasonable doubt, and lower than clear and convincing evidence.

What it decides

The burden of proof sits on the person asking for the benefit and never shifts to USCIS, and preponderance governs unless a statute names a higher standard. Matter of Chawathe is the decision officers apply: even where the officer has some doubt, relevant, probative and credible evidence that makes the claim probably true satisfies the standard, and truth is determined not by the quantity of evidence alone but by its quality, so padding a filing does not help. Where an officer can articulate a material doubt, the officer may ask for more evidence or, if the doubt means the claim is probably not true, deny. That safety net has narrowed: under Policy Alert PA-2026-05 of 4 August 2026, effective immediately and applied to pending cases, USCIS may deny outright for missing required initial evidence without first issuing a request for evidence or a notice of intent to deny. The burden reverses in one place only. After USCIS denies Form I-829 and terminates status, review lies in removal proceedings, where USCIS must show by a preponderance that the facts in the petition are not true.

Governed by 1 USCIS-PM E.4(A) on burden and E.4(B) on standards of proof, page current as of 5 August 2026; INA 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010); INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987), which is the source of the greater than 50 percent reading, not Chawathe; USCIS Policy Alert PA-2026-05, 4 August 2026, for the change to requests for evidence and notices of intent to deny; 8 U.S.C. 1186b(c)(3)(D) and 8 CFR 216.6(d)(2) for the reversal of the burden after an I-829 denial. Note that 1 USCIS-PM E.4 does not itself cite Chawathe.

Where this is explained properly

Pages here that go into preponderance of the evidence rather than mentioning it.

Source of Funds Documentation: Tips for a Successful I-526

Related terms

Request for EvidenceA Request for Evidence, or RFE, is a written USCIS notice that the record as filed does not establish eligibility and that named further evidence must reach USCIS by a stated deadline, which can never exceed twelve weeks and cannot be extended. It is a stage in the adjudication rather than a denial, but USCIS is under no duty to issue one before denying.
Notice of Intent to DenyA Notice of Intent to Deny, or NOID, is a written USCIS notice that the officer has reached a proposed refusal, setting out the grounds and allowing one answer within a period that can never exceed 30 days. On an EB-5 filing it is always discretionary, never something the petitioner can insist on, and USCIS may deny without issuing one.
Removal of conditionsRemoval of conditions is the last EB-5 filing, Form I-829, submitted in the 90 days before the second anniversary of conditional residence, in which the investor shows the required capital was invested and kept invested for the period the law requires and that ten full-time jobs were created or can be expected within a reasonable time.
DeferenceDeference is the rule that USCIS stands by a determination it has already made about an EB-5 project when it adjudicates later filings resting on the same facts, so the project is not argued again investor by investor. Since the 2022 Act it is statutory: an approved Form I-956F binds the adjudication of every investor in that offering.

Checked against primary sources on 10 August 2026. Back to the glossary