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Approval After NOID: How To Respond To A USCIS NOID Or RFE, Including A Case Study

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If you’re an EB-5 applicant, receiving a Notice of Intent to Deny (NOID) or a Request for Further Evidence (RFE) from United States Immigration and Citizenship Services (USCIS) can be a frightening experience.

Don’t panic! Receiving a NOID or RFE does not necessarily mean that your project, visa, or regional center application is going to be rejected. If you follow the correct process and provide the right information, there’s a good chance you can rectify the problem.

This article explains how you can get your EB-5 application approved after receiving a NOID. We also provide a case study detailing how an investor we worked with successfully responded to a NOID.

What Is the Difference between a NOID and an RFE?

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Both a NOID and an RFE indicate that there’s something wrong with your application. A NOID is more serious than an RFE, and must be responded to quickly and comprehensively to make sure your application goes forward successfully.

Here’s a brief overview of each:

What is a Notice of Intent to Deny (NOID)?

A Notice of Intent to Deny (NOID) is issued by USCIS to inform an EB-5 applicant that USCIS plans to reject their petition. A NOID indicates that there are “systematic” issues with the petition. These could relate to:

  • A regional center application
  • A project
  • An investor

An investor NOID at the regional center level might be triggered if:

  • Leadership team qualifications have not been communicated
  • Assumptions driving the revenue/spending have not been well-supported
  • The business plan is not credible

Examples of what might trigger an investor NOID at the project level include failure to:

  • Adequately source non-EB-5 project funds
  • Provide market feasibility information
  • Provide all required project documentation

Examples of what might trigger an investor NOID at the investor level include:

  • Inadequate evidence submitted relating to the source or path of funds
  • Inadequate evidence submitted relating to the investor’s personal background
  • New disqualifying information coming to light—for example, criminal convictions

NOIDs are generally very serious. They indicate that USCIS has enough evidence to adjudicate your application and plans to deny it based on that evidence.

The good news is that you’ll also get the opportunity to respond. In other words, you can submit extensive evidence in response to the specific ground for denial. This may change USCIS’s decision.

The individual or organization the NOID is aimed at is accountable for the response. For example, a regional center would respond to a regional center-level NOID if, for instance, Form I-924 is incomplete.

If you receive a NOID, you should act immediately. You have 33 days to address these issues, or your application will be denied.

You must provide a detailed response, including a well-organized cover letter that forensically argues against each point made by USCIS. You should also attach and refer to the exhibits and evidence that prove your arguments.

What is a Request for Evidence (RFE)?

Requests for Evidence (RFEs) are less serious than NOIDs, but should still be handled carefully. They are usually triggered for similar reasons. The main difference is that RFEs indicate that USCIS has insufficient evidence to assess your visa application or that some details in the immigration petition are inconsistent or unclear.

An incomplete form is a good example of an issue that would trigger an RFE. Without complete forms, USCIS cannot adjudicate your case. You have 30–90 days to respond to an RFE. Your case will be put on hold during this time, so it’s beneficial to respond as quickly as possible. Your application will likely be denied if you don’t.

Sometimes, a petitioner’s response to an RFE will be followed by a NOID from USCIS. This means USCIS has adjudicated your application, including the RFE response, but still intends to deny it. You can still respond to the NOID separately.

How to Respond to a Notice of Intent to Deny

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Responding properly to RFEs and NOIDs is essential to salvage your petition. When USCIS issues a NOID or RFE, the recipient must offer a satisfactory response or risk the petition being denied.

This section explains:

  • What constitutes a satisfactory response to an RFE or NOID
  • The processes and practices that result in a successful outcome

By following the RFE and NOID best practices given below, a petitioner will increase their likelihood of successfully overcoming a NOID and receiving a positive adjudication on their petition.

Each RFE and NOID is unique, and each response requires a custom-tailored approach. The RFE and NOID response process involves:

✅ Coordinating a response team
✅ Assembling evidence in response to issues outlined in the RFE or NOID
✅ Filing the response by the deadline

✅ Coordinate a response team

We recommend consulting an experienced and knowledgeable EB-5 expert—whether a consultancy firm or an experienced immigration attorney. They’ll enable you to prepare an effective response to a NOID. For investor-specific NOIDs, the investor’s immigration attorney will also need to be part of the response process.

A NOID response requires professional expertise. Even if a petitioner opts to respond to a NOID on their own, they should still assemble a team of qualified individuals to handle different parts of the process. These individuals may assist with:

  • Updating project documents, like the business plan and economic report
  • Compiling financial information
  • Updating budgets
  • Clarifying schedules
  • Providing third-party verification
  • Drafting a cover letter, organizing evidence and proofreading your response

The most important element of the response process is coordinating an effective team. The right team can address every issue raised by USCIS in a timely manner.

✅ Respond to each issue indicated by USCIS

NOIDs indicate a systemic problem with your petition. Fixing this might involve extensive revisions to documents, additional third-party support documentation, and other evidence.

Your response must be detailed, systematic, and forensic. A well-written cover letter is needed to provide clarification, amendments and specific arguments that narrowly address each issue brought up by USCIS. The cover letter must highlight well-organized evidence that supports each clarification, amendment, and argument.

✔️ Cite relevant legislation

Sometimes, a NOID states that a particular piece of evidence is not compliant with the requirements of the EB-5 program. In such cases, it’s sometimes necessary to prove the original evidence is valid by citing:

  • Immigration law
  • USCIS memorandums
  • Similar documentation

You may need the help of an experienced immigration attorney or qualified EB-5 consulting firm to address such issues adequately.

✔️ Update documentation

In addition to clarifications, NOIDs often require updating relevant documents. This may involve making significant revisions to the:

Any changes made in response to a NOID must be documented in the response cover letter.

✔️ Gather additional documents

Other documents, such as permits, receipts, bank records, land deeds, and letters of intent, may also need to be gathered. Compiling these additional documents into a comprehensive but easy-to-follow set of exhibits is an important part of the process. Properly citing these exhibits within the cover letter as part of the response to individual issues expressed by USCIS is also essential.

✅ Submit the response by the deadline

Filing the response by the deadline is crucial. As mentioned earlier, USCIS gives applicants 33 days to respond to NOIDs.

✔️ Postage: Best practice

USCIS provides an envelope for NOID responses. This envelope has a barcode printed on it that’s used by USCIS to process and track the case. Always use this envelope if you can. If the response documents don’t fit, the envelope should be attached to the top of the response packet to prevent any delays in processing.

The response should be sent using priority or certified mail that provides delivery confirmation. This serves as proof that USCIS received the RFE or NOID by the deadline. Next-day or overnight delivery may be necessary if submitting the response on or near the deadline.

⏳ Waiting for a response

Once USCIS receives your NOID response, it will continue processing your application as usual. This can take months or even years. You will only find out if your response was successful when your petition is approved or denied.

General best-practice checklist

Use this checklist to ensure your NOID response meets the USCIS adjudicator’s requirements:

✅ Provide both a summary and detailed information
✅ Minimize contentious issues by providing explanations and evidence
✅ Work with a reputable team
✅ Verify all evidence with a third party
✅ Make your business case more detailed, even beyond the specific requirements outlined by Matter of Ho

What If My NOID Response Is Denied?

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If your application is denied even after you have submitted a NOID response, you can still appeal the decision. You may also be able to file a new application. Speak to an immigration attorney to understand your options and the best course of action.

Notice of Intent to Deny: A Case Study

The case study in this section illustrates how the best practices listed above can help investors get a NOID overturned.

🔍 Situation

This case study involves an individual EB-5 petitioner who invested in a major hotel renovation project in New York State. The petitioner was issued a NOID in response to her Form I-526 filing. USCIS indicated that the investor had failed to establish her eligibility under the EB-5 program for the following reasons:

A. Form I-526 was not complete
B. The mailing address on Form I-526 was shared by other investors in the same project
C. The invested capital was not sufficiently linked to the entity primarily responsible for job creation
D. The evidence did not establish that invested capital was obtained and exchanged lawfully
E. The business plan was not Matter of Ho-compliant

Best practice #1: Coordinate a response team

In this case, the investor worked with her immigration attorney and hired an experienced EB-5 consulting firm to help handle the NOID.

The EB-5 consulting firm prepared a response to the NOID. It wrote a cover letter that paralleled the NOID point for point. Points (A), (B), and (D) from the NOID were handled by the investor’s immigration attorney, while points (C) and (E) were handled by the consulting firm.

Best practice #2: Respond to each issue indicated by USCIS

Here is how the investor’s team addressed each issue raised by USCIS individually:

🔍 Point (A): The investor’s immigration attorney completed Form I-526, which was missing answers to multiple questions.

🔍 Point (B): The immigration attorney provided documentary evidence that the investor lived at the address listed on her I-526 petition.

🔍 Point (C): The primary issue in this section was insufficient evidence that the investor’s capital actually went to the job-creating entity (JCE).

The consulting firm responded with an update to the sources and uses chart. This identified the JCE and evidenced the flow of funds from investors to the renovation project. This updated chart was referenced in the cover letter and included as an exhibit.

Next, the consulting firm provided annotated bank records that showed the transfer of funds from the EB-5 investor into the new commercial enterprise (NCE) bank account. It also showed the subsequent transfer of funds from the NCE’s account to the JCE’s account.

The response also indicated the date on which the investor’s capital contribution was deposited into the NCE’s bank account, as well as the transaction number for this deposit. Each of these details were listed in a cover letter, and the annotated bank records were included as an exhibit to the response.

A secondary issue raised by USCIS in point (C) was the lack of a construction loan agreement, which the business plan indicated would be included in the filing. Thus, a construction loan letter of intent and term sheet was included in the response package as an exhibit and was referenced in the cover letter.

🔍 Point (D): This required further evidence of the lawful source and path of the investor’s funds. The immigration attorney clarified some inconsistencies in statements between Form I-526 and a letter accompanying that form.

USCIS also required further evidence that a gift from the investor’s father used in the investment was lawfully acquired by the father. The attorney included evidence of the father’s employment and tax history as an exhibit.

🔍 Point (E): This covered several issues regarding the business plan and its supporting documentation. The EB-5 consulting firm responded to these by revising the business plan with the correct project information, including the construction timeline and budget. The revised business plan was included in its entirety as an exhibit. The economic impact report also had to be revised and was included in the response package.

🔍 Cover letter: The EB-5 consulting firm wrote a cover letter for the investor’s NOID response. This went through each of the issues raised by USCIS one by one, supporting each assertion with:

  • Clarifications
  • Explanations
  • Evidence

This evidence included:

  • Updated schedules
  • Permits
  • Licenses
  • A letter of intent
  • Business registration documents
  • A land deed
  • A developer equity contribution letter
  • Other relevant documents

All of these were referenced in the cover letter and included as exhibits to the response.

Best practice #3: Submit the response by the deadline

Several days before the deadline, the EB-5 consulting firm finished its work drafting the cover letter and compiling the set of exhibits. It then electronically transmitted this material to the investor’s immigration attorney. Likewise, the attorney had prepared the necessary documentation to address points (A), (B), and (D), and, upon receiving the material from the EB-5 consulting firm, integrated his work into the document package. The attorney then filed the completed response on time.

🔍 Outcome: USCIS accepted the investor’s petition.

Get Expert Support for Your Notice of Intent to Deny (NOID) or RFE Response

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EB5AN has great expertise in the EB-5 visa process. We provide a turnkey service to assist with responding to NOIDs and RFEs and take a custom approach to every case. This includes:

✍️ Cover letter preparation
📄 Project document updating
⚖️ Exhibit preparation

Speak to our team today to get a free quote.