When reviewing EB-5 immigration petitions, United States Citizenship and Immigration Services (USCIS) may find that additional information or clarification is necessary to continue processing the petition. USCIS then initiates a formal Request for Evidence (RFE) in such instances.

This article explains everything you need to know about RFEs, including what they are, how to respond, and how you can avoid getting one in the first place.

Understanding RFEs

The first step when dealing with an RFE is understanding what an RFE is and what it entails. Sometimes, the response process can be complicated and the response deadline tight, so you should consider seeking help from an experienced EB-5 consultant or immigration lawyer.

What is an RFE?

An RFE is a form of communication between USCIS and a petitioner through which USCIS asks them for additional information to adjudicate the petition. RFEs allow USCIS to:

• Ask for missing documentation to be submitted to them.
• Clarify confusion.
• Correct discrepancies.

According to USCIS guidelines, an RFE should:

• Explain which eligibility requirements have not been met.
• Why the evidence submitted with the original petition failed to meet these requirements.
• List any missing evidence required by the relevant statute, regulation, or form instruction.
• Finally, it should provide examples of additional evidence that can be submitted to meet the eligibility requirements in question.

In other words, an RFE should clearly identify what needs to be submitted and it may include details on how the problem needs to be addressed.

Note that an RFE is not a denial, nor does it necessarily indicate the petition will be denied. If an application clearly does not meet the requirements of the EB-5 Program, USCIS may, at its discretion, deny it outright by issuing a Notice of Action denying the petition. When a petition includes enough initial evidence for a negative determination, USCIS may issue a Notice of Intent to Deny (NOID) instead.

How is an RFE different from a NOID?

A NOID is similar to an RFE in that it gives the petitioner a chance to provide sufficient evidence to convince USCIS to approve the petition. But a NOID is much more serious and urgent, since it indicates a case is at a high risk of being denied. Upon receiving a NOID, a petitioner should act immediately to try to salvage his or her case.

	RFE	NOID
Reason	An incomplete or inconsistent petition where more information is required to help USCIS make a decision.	The investor does not meet the EB-5 Program requirements based on the evidence they submitted to USCIS.
Indicates the petition is likely to be denied?	No	Yes
Action required	Submit additional evidence.	Respond to the proposed grounds for denial.
Urgency	Moderate	High

While perhaps not as serious as a NOID, an RFE should be handled with caution because a petitioner’s response will likely determine the outcome of the case. A petition that would otherwise have been successful could be derailed if an RFE is not adequately dealt with.

Unlike an NOID, however, which is issued when the evidence is generally sufficient for a negative determination, an RFE is issued when a petition lacks sufficient information for final determination, or when some details of the petition are inconsistent with other details or are otherwise unclear.

Reasons for RFEs

Some common reasons why USCIS sends RFEs to investors include:

• Inconsistencies in or a lack of detail about major features of projects.
• Lack of third-party evidence that support project feasibility.
• Inaccurate financial projections.
• The business plan submitted fails to prove that it has the potential to operate successfully.

You may need help to formulate your response, as clear guidelines on acceptable evidence are not always available. For example, you may need to submit a revised business plan, and seeking professional help will ensure that the revised plan answers the adjudicator’s questions.

How long does a petitioner have to respond to an RFE?

Upon receiving an RFE, a petitioner has a limited time to respond. The response deadline will be indicated in the RFE and is typically between 30 and 90 days. Once an RFE has been issued, all work on the case is halted—so a prompt response is important. Failure to respond by the given deadline will likely result in denial. Note that the date of issue—the day on which the countdown period begins—is the date that appears at the top of the RFE and not the date on which the RFE was mailed or received.

Can a petitioner send multiple responses to an RFE?

Typically, a petitioner has only one opportunity to respond to an RFE. Once USCIS has received a response, it will move forward with adjudication. If the petitioner sends multiple responses, USCIS may not consider any evidence beyond what was sent in the first response submission.

In some cases, a partial response might be acceptable—for example, if the petitioner cannot gather all the evidence requested by the deadline. An incomplete response is better than no response at all because failure to respond almost guarantees the petition will be denied.

If a response to an RFE is incomplete or generates additional questions, USCIS may, at its discretion, issue an additional RFE.

Responding to RFEs

Receiving an RFE can seem intimidating, but you shouldn’t panic. In fact, since USCIS can deny a petition without issuing an RFE, you might think of an RFE as a second chance to convince USCIS to approve your petition.

While some RFEs are simple and clear requests for specific documents, others are more complicated. If in doubt, consult an experienced immigration attorney or seek professional RFE response assistance.

Here’s a step-by-step guide that will help you respond to most RFEs:

1. Review the RFE

Begin by taking the time to understand everything in the RFE. An RFE typically covers five topics:

1. The background to the application

An RFE usually starts with a paragraph or two that reference your original application. This part informs you what kind of application you sent, when USCIS got it, and which USCIS office is looking at it now.

The introduction also indicates that USCIS needs more proof or evidence to decide on your application.

2. The relevant legislation

The RFE usually begins by quoting U.S. immigration law, regulations, memorandums, and USCIS guidelines in addition to cases and precedents set by the:

• Administrative Appeals Office (AAO)
• Board of Immigration Appeals (BIA)
• Board of Alien Labor Certification Appeals (BALCA)
• Courts of Appeal
• The Supreme Court

These references usually pertain to the relevant section of the Immigration and Nationality Act (INA) related to the prerequisites for the immigration application you’ve filed.

In most cases, the contents of this section within the RFE are of an introductory nature and not as important, unless your immigration attorney intends to contest the request.

3. The evidence submitted so far

This part shows the required initial evidence you have already submitted in support of your application. Check the list of evidence USCIS declares it received from you to make sure it lists everything you sent with your first application. If you see that something is missing, send it again as part of your response to the Request for Evidence (RFE).

4. Additional evidence required

USCIS will also inform you of all the documents or evidence they’re missing. This missing documentation stops the review of your case, as per the relevant sections from immigration law they quoted earlier.

This part of the RFE is often quite involved because this is where USCIS will explain the conditions you haven’t met. It will also suggest documents you can send if you don’t have access to original copies. Ensure you carefully review this section and include everything you need to support your case.

5. The deadline

USCIS will tell you by when to respond and where to send your response. This deadline is the time limit you have to prepare your RFE response and submit it.

One of the first things you should do upon receiving an RFE is to take note of the date the RFE was issued and the number of days given to respond. Be sure to mark the deadline on at least one calendar. Note that the deadline indicates when the response submission must be received by USCIS, not the postmark date.

Here are some other things to do before you prepare your RFE response:

Make a copy

You should make at least one copy of the RFE for your own record-keeping purposes; the original will constitute the first pages of your response packet. Consider making another copy of the RFE to tick off your progress as you work through it.

Check your original application

Compare the list of evidence already submitted to the evidence listed in the original application. Sometimes documents go missing or adjudicators overlook evidence. If a document is missing, responding to the RFE might be as simple as resubmitting the document.

Note required evidence

Carefully read through the RFE and note the exact details of the evidence USCIS is requesting. USCIS expects very specific documents that clearly prove your case. If you aren’t sure about what evidence will satisfy a particular request, you’ll need to conduct some research, consult a lawyer, or contact an EB-5 consultant. You must reply to every request—failing to do so will likely result in denial.

2. Research the RFE

After carefully reading through the RFE and listing the specific evidence requested by USCIS, research the laws, regulations, or other sources cited in support of their request.

At times, the supporting laws cited by USCIS are taken out of context or are inconsistent with other USCIS guidelines, memorandums, or standard operating procedures. An RFE may also request information that has already been filed or, in some cases, ask for information that simply does not exist. USCIS adjudicators are not infallible and sometimes, mistakes are made. RFEs have also been used in attempts to gain more information on a petitioner, even though the information requested had no bearing on the case in question.

3. Collect and compile the requested evidence

An RFE can be successfully overcome by providing the necessary evidentiary documentation in a clear and well-organized format.

Some useful tips include:

✔️Use headings, subheadings, numbering, and bullet points where necessary to keep the content organized.
✔️Avoid lengthy paragraphs, and be sure to clearly indicate whether the content is based on facts, analysis, or interpretation.
✔️Present any included data with graphs and charts.
✔️Use the information provided in the RFE to structure a comprehensive, thorough response.

When drafting the response cover letter, mirror the RFE to demonstrate that the response packet fully addresses every issue. This will create a clear roadmap for the adjudicator showing how the response offers proof for each requirement mentioned in the RFE.

In the simplest case, USCIS may request a specific document that you either failed to include in the initial filing or that the adjudicator overlooked. In these cases, you must simply provide the requested document. However, be sure to include the right document in the right format.

Examples of the kinds of documents an RFE may request, include:

• A missing form. All necessary forms are available for free on the USCIS website.
• Notarized affidavits from family and friends
• Some form of civil document—like a birth certificate, marriage certificate, or death certificate—which might not be available depending on your country of origin and other factors.

The Department of State Reciprocity Tables indicate what documents can be substituted for others under given circumstances. Please note that these guidelines differ between countries, so be sure to consult the table that matches your country of origin.

Doubts or lack of clarity over your case

In addition to requests for specific missing or incomplete documentation, USCIS might issue an RFE because the adjudicating USCIS officer has doubts or a lack of clarity regarding your case. If this is so, you may have to accumulate additional evidence that may not be specified explicitly in the RFE.

For example, if the original submission is based on data provided by the project managers of your job-creating entity (JCE) rather than impartial third parties, you may need to include an economic analysis or another form of project documentation to support your application.

If the adjudicator doubts that your evidence meets the requirements of the EB-5 Program, then your response may be as simple as explaining why it does meet the requirements. Such explanations will likely require the assistance of an immigration attorney or RFE response consultant.

Once you have gathered all the evidence requested, arrange the response packet with the original RFE on top, followed by a cover letter, and then all the requested documents presented in the order in which they were requested in the RFE.

Once you have completed the response packet, make an exact copy thereof for your records.

4. Send the response to USCIS

The RFE envelope provided by USCIS includes a barcode that allows the organization to track your case. If your entire response packet fits into the envelope, use it. If the packet does not fit, attach the envelope to the top of your response. If you do not include the envelope with the barcode, your case will face further delays.

The RFE will indicate the address to which you should mail your response. Be sure to use this exact address, even if you have sent other correspondence to USCIS at a different address. If you send your response to the wrong address, you could miss the deadline or, at best, delay processing.

Send the response via priority or certified mail with some form of delivery confirmation. This will serve as proof that the RFE response was delivered to USCIS by the deadline.

Remember that the response deadline applies to the receipt—not the mailing—of the response. In other words, USCIS must receive your response on or before the deadline. The mailing date is irrelevant.

Once you have received proof of receipt from USCIS, attach it to your response packet copy for safekeeping. Upon receiving your response to the RFE, USCIS will usually take further action on your application within 60 days—but as always, wait times can vary greatly.

5 Tips for Avoiding Processing Delays and RFEs

The visa application process is complicated. This is especially true of the EB-5 Program, as these applications involve complex supporting evidence. Getting an RFE can significantly slow down your application.

Follow these tips to avoid delays beyond the usual wait times:

1. Follow the guidance. USCIS provides detailed EB-5 form tips. These cover everything from filling to submitting forms.
2. If your address or contact details change during the adjudication process, update USCIS to ensure the agency can contact you if necessary.
3. Check the USCIS website for EB-5 filing resources, such as the Suggested Order of Form I-526 Documentation.
4. Remember to update public information about you, your business, the project, and anything else pertinent to your application. Adjudicators can refer to public information when processing your application.
5. Work with EB-5 experts to ensure that your form submissions and application packets are complete and relevant, and to proactively troubleshoot problems should they arise.

Conclusion: Don’t Panic

Receiving an RFE can be a frightening experience for EB-5 investors. But it’s important to remember that your petition hasn’t been rejected outright. If anything, this is a second chance to make it as perfect as you can.

Stay calm and follow the guidance in this article. If you think you need extra help, then either hire an immigration attorney or an RFE expert.

Alternatively, you can contact EB5AN. We’re a network of regional centers that operates across the United States. Our experts have many years of experience helping EB-5 investors gain permanent residency in the United States.