One of the most dreaded experiences for participants in the EB-5 Immigrant Investor Program is receiving a Request for Evidence (RFE) from United States Citizenship and Immigration Services (USCIS). Not every EB-5 investor encounters this anxiety-inducing situation, but those who do need to plan their response carefully to not jeopardize their chance of obtaining U.S. permanent residency.
What Is an RFE?
The most important thing to understand about USCIS RFEs is that they do not mean your I-526 petition will be denied. This differentiates them from Notices of Intent to Deny (NOIDs), in which case USCIS does intend to deny your petition unless you clear up any misunderstandings.
You can think of both RFEs and NOIDs as a second chance for an EB-5 visa. USCIS issues NOIDs to warn EB-5 investors that the evidence provided in their EB-5 petition will lead to a denial if they don’t clear up the issues USCIS identifies. USCIS RFEs are less frightening, as they are issued when the evidence in a petition is insufficient to support an adjudication, either positive or negative. USCIS will be forced to deny your EB-5 petition if you do not provide the requested information by the specified due date, but an RFE does not indicate an intention to deny your EB-5 petition.
What Information Does an RFE Contain?
Luckily for EB-5 investors, USCIS RFEs contain ample information to help them formulate a proper response. USCIS explains in detail why it has issued the RFE—typically in response to missing documentation, unclear evidence, discrepancies, or other data-related problems. If the petition is lacking essential documentation, the RFE will identify the necessary documents, and if it contains unclear or contradictory information, the RFE will identify the problem areas. In most cases, RFEs also provide examples of suitable evidence to provide in the RFE response.
In What Situations Might an EB-5 Investor Receive an RFE?
I-526 petitions are complicated, so there are many areas where issues can arise. EB-5 investors often receive USCIS RFEs in response to insufficient evidence documenting the lawful sources of their EB-5 capital or the path of their funds into the EB-5 project. USCIS also sends out RFEs for additional information on the EB-5 investor’s personal background.
While investors often receive USCIS RFEs regarding investor-level information, they may also need to provide supplementary information on the EB-5 project. For example, USCIS may request additional information on the hiring schedule or business plan of the new commercial enterprise (NCE).
In some cases, EB-5 investors may even receive an RFE because USCIS overlooked documentation they provided. USCIS agents are not infallible, and the complexity of I-526 petitions makes it easy enough to overlook information. In this case, all you need to do is resubmit the requested evidence. Don’t waste this opportunity to scrutinize your documentation and make changes if necessary, however. Explain in a cover letter that you are resubmitting an overlooked document, but identify and justify any changes you have made.
How to Respond to an RFE
The first step to responding to a USCIS RFE is to carefully read all the information provided therein. RFEs always include a deadline for responding, which EB-5 investors must consider when preparing their response. Since failure to respond to an RFE will lead to denial, investors cannot afford to delay their response. Stay calm—if you follow USCIS’s instructions and provide a suitable response, your I-526 petition will likely proceed smoothly.
In addition to the requested evidence, an RFE response should always include a detailed cover letter that addresses all the concerns USCIS has identified and clearly organizes all the attached documents. Use your given time wisely and compose a well-thought-out cover letter. Ask others to check it to ensure it’s sufficiently thorough and clear.
When confronted with a USCIS RFE, consult experienced EB-5 experts to help formulate an appropriate response. The EB5AN team consists of long-time professionals in the EB-5 sphere who understand the ins and outs of the program. Our team can assist you with preparing documentation, refining business plans, and other matters related to RFE responses. Reach out to us, and we can help you craft a high-quality response to your RFE.
