The requirements set out by United States Citizenship and Immigration Services (USCIS) for EB-5 investors are relatively straightforward—investors are required to meet the minimum investment threshold, use at-risk funds, create at least 10 jobs, and prove that their invested capital was sourced lawfully. Thanks to the EB-5 investment program’s accessibility, thousands of foreign nationals have been able to relocate to the United States and enjoy the benefits of permanent resident status.
After an EB-5 investment has been made, the next step is to file Form I-526, Immigrant Petition by Alien Investor. USCIS will evaluate this petition to determine whether an investor has complied with the program’s regulations. Investors whose I-526 petitions have been approved by USCIS are cleared to begin a two-year conditional permanent residence period. However, investors occasionally face an unexpected obstacle after filing Form I-526—USCIS may send them a request for evidence (RFE). This article provides some background on RFEs and explains how EB-5 investors can respond to them successfully.
What are RFEs?
USCIS will send an RFE when the information submitted in an investor’s I-526 petition is incomplete or otherwise lacking—there must be abundant evidence that the investor complied with the many guidelines of the EB-5 program. If there are discrepancies in an investor’s I-526 petition or any information is confusing, USCIS will likely issue an RFE.
RFEs indicate what information needs to be provided or clarified by the investor. USCIS will typically provide clear direction on what requirement has not been complied with, and the missing pieces of evidence will be identified. An RFE may even provide examples showing what kind of documentation or other information is needed to complete the I-526 petition.
It is important to note that an RFE does not constitute a denial of the I-526 petition—USCIS simply needs more information to proceed with the adjudication process.
How to Answer an I-526 Petition RFE
The first step is to carefully examine the RFE—investors must be able to identify exactly why USCIS deemed their I-526 petition as lacking. It is also important to keep in mind the deadline for responding.
Every RFE should begin with a cover letter outlining the newly provided evidence. This cover letter should be organized according to the contents of the RFE, which will help the USCIS adjudicators analyze the new evidence more easily. Then, investors need to compile the missing evidence or clarifications, taking care to present this content in an organized manner.
The most straightforward RFEs simply ask for missing forms or specific documents, and it may be relatively straightforward to provide these materials. However, USCIS might also ask investors for stronger evidence that they will create the needed employment, use at-risk funds, or comply with other EB5 investment requirements. These issues are often related to the EB-5 project’s business plan, so investors will have to provide further information showing that the EB-5 project will indeed be successful. To this end, investors may have to provide evidence such as the employment records of existing workers or details about the project’s escrow agreement.
Investors who respond to RFEs face a potential danger: they must take great care not to make any material changes to their EB-5 projects. A material change is defined as a significant alteration to a project’s EB-5 investment structure, business activity, location, or other important features. If such a change takes place after Form I-526 is filed, USCIS will deny the investor’s petition. While investors should provide all the needed evidence and clarifications when answering RFEs, the new information should essentially agree with that of the original I-526 petition.
Since EB-5 investors must consider a myriad of factors when filing Form I-526 and answering RFEs, an immigration counsel’s guidance will be invaluable. Moreover, EB5AN offers RFE response consulting, helping EB-5 investors continue on their path toward permanent residency in the United States.
