The Hidden Risk in EB-5 Projects: What to Know About Pending RFEs

Getting a U.S. Green Card through the EB-5 visa program is a big decision, as it requires a large financial commitment of at least $800,000. As such, every choice should be made carefully during the process, especially the EB-5 project you invest in.

This is because not all EB-5 projects are the same. While some follow the rules and give investors a strong chance at success, others may have problems that are not easy to see. One warning sign that you should never ignore is a pending request for evidence (RFE).

In this article, we will discuss why you should ask if an EB-5 project has pending RFEs and how it affects both your Green Card application and your financial future.

What Is an RFE?

A Request for Evidence (RFE) is a letter sent by USCIS when it needs more information before making a decision on a petition. They are not denials; rather, they are issued when a petition does not fully meet the rules, so the applicant has the opportunity to fix the issue. If the applicant replies with enough evidence, their petition is approved. If not, it may be denied.

There are two types of RFEs that can be served in the EB-5 process:

• Individual RFEs: These RFEs are sent directly to EB-5 investors. Here, the agency asks for more proof of details like lawful path and source of funds, identity or personal history, and business or income records.
• Project-level RFEs: These RFEs are sent to the regional center or the EB-5 project itself when USCIS has not decided whether the project is good enough for EB-5 purposes.

How Did the RIA Change the EB-5 Review Process?

One key change the EB-5 Reform and Integrity Act of 2022 (RIA) made was the requirement that all regional center projects file Form I-956F before investors can file their I-526E petitions. Form I-956F is a project application that must include all required documents that prove the project meets EB-5 standards. These documents include:

• Detailed business plan
• Economic impact study
• Loan or equity agreements
• Fund use plan
• Job creation model
• Securities compliance proof

Any project’s Form I-956F that misses one or more of these details may get an RFE.

Why USCIS May Issue an RFE to a Project

Below are some common reasons a project may receive a request for evidence:

1. Unclear Job Creation Method

The EB-5 program requires each investment to create at least 10 full-time jobs. So, a project will be issued an RFE if it:

• Lacks clear timelines or hiring schedules
• Uses an unrealistic economic model
• Does not show enough direct or indirect jobs

2. Problems With the Business Plan

A strong EB-5 business plan should include:

• Timelines
• Hiring schedules
• Construction or development stages
• Market data
• Capital structure

If the business plan skips these details, USCIS may not trust the project’s job creation or financial projections, thus leading to an RFE.

3. Improper Use of Funds

The agency wants to see that investor money is used for job-creating activities, not for personal gain or unrelated purposes. Therefore, a request for evidence may question:

• How funds are held or spent
• The flow of capital
• Whether the money stays at risk, as required

4. Conflicts of Interest

The RIA requires full disclosure of any actual or potential conflicts of interest between the regional center, project developer, or related parties. Thus, USCIS may issue an RFE if:

• Conflicts are not disclosed in the offering documents
• Investor waivers for conflicts, including permissible conflicts, are missing or incomplete
• The developer has too much control over loan terms or project decisions

5. Problematic Backgrounds of Key Individuals

Every person with control over the investment, pooling, or use of EB-5 funds must submit Form I-956H with biometric information and background checks. USCIS screens for the following and may issue an RFE or deny the filing if it finds:

• Fraud or deceit-related offenses in the past 10 years
• Civil fraud judgments over $1 million
• Convictions with over one year in prison
• Involvement in drug trafficking, money laundering, terrorism, or human trafficking
• Public discipline by financial regulators or professional boards

6. Annual Reporting Failures

Regional centers must file Form I-956G each year to report how EB-5 capital is used across projects. As such, missing this annual filing may result in compliance issues. If a project fails to file or update its records properly, it may get an RFE asking for current data.

Why Do Project-Level Pending RFEs Matter to You?

As an investor, you may not be directly involved in preparing the EB-5 project paperwork. However, your immigration success depends on that paperwork being solid. Here’s how a project-level pending RFE could impact your EB-5 process:

• It can delay your I-526E petition: USCIS often won’t move forward with reviewing an investor’s petition if the project documents are incomplete. If the project has a pending RFE, your petition may be unattended to for months or even longer.
• It can lead to denial of your petition: If the project fails to respond well to the RFE, or if USCIS rejects the response, your I-526E may be denied. That means no Green Card and a major loss of time and money.
• It can block you later at the I-829 stage: Even if USCIS approves your I-526E, you must still file Form I-829 to get your permanent Green Card. If the project never fixed the problems raised in the RFE, it may not meet the job creation requirements later.
• It may be a sign of deeper risks: Some RFEs reveal bigger issues like poor planning, weak financial structure, or bad management. If a project hides or ignores an RFE, it may not survive long enough for you to remove conditions and get permanent status.

Partner With EB5AN for Transparent EB-5 Projects

RFEs can signal a serious problem with an EB-5 project, which is why you need to find out if a project has a pending RFE before investing in it. A transparent project will be willing to disclose any issues and how it plans to mitigate risk for you. However, one that fails to provide important information is a red flag and should be avoided.

For EB5AN, transparency is a top priority. Our team has over 10 years of experience, and over 2,700 families from more than 70 countries have partnered with us to successfully secure their Green Cards.

If you’re ready to explore safe and vetted EB-5 projects with no RFEs, book a free call with our expert team today.