Responding to Direct EB-5 RFEs

In August 2021, the USCIS Investor Program Office approved only 16 I-526 petitions, but sent out 87 Requests for Evidence (RFE) on I-526. RFE response presents a strategic challenge and opportunity for petitioners: another chance to strengthen the basis for approval and to avoid adding basis for denial.

Most direct EB-5 RFEs ask about the business plan. By the time USCIS reviews I-526 years after filing, every I-526 business plan is deficient at least in the sense of being outdated. The adjudicator reviewing the I-526 does not only want to know what the plan used to be, but how the plan has turned out. A business plan may also be deficient in the sense of being incomplete – lacking validation, or lacking relevant detail about use of investment and job creation. In the worst case, a carelessly-prepared business plan may positively demonstrate that the EB-5 investment does not meet EB-5 requirements.  So what can be done, when USCIS sends an RFE that identifies “deficiencies,” states that “Petitioner has not established eligibility for the benefit sought” and warns “a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements.” How can one correct deficiencies, and also not make material changes? It takes experience, care, and strategy.

Having helped with many RFE responses as a business plan writer, I see three strategic steps:

1. Identify the USCIS adjudicator’s specific concerns. It helps to be familiar with RFE template language, so that you can distinguish case-specific questions from the boilerplate content.
2. Regardless of the specific RFE questions, identify what the adjudicator needs to know about the enterprise, investment, and job creation order to approve the I-526.
3. Prepare an RFE response that addresses specific concerns, provides clarification and evidence to further support compliance with EB-5 requirements, and emphasizes the non-materiality of any changes from the information and evidence previously filed with Form I-526.

Step 1: Identify Explicit Adjudicator Concerns

I start by looking at the RFE and asking myself: “What does the adjudicator think is deficient about this I-526 petition?” Note that business plan-related questions that the adjudicator wrote for the RFE are normally located between these two template sentences: “Upon reviewing the business plan, USCIS finds that the evidence in the record does not establish that the business plan is Matter of Ho compliant” and “For the reasons identified above, the business plan is not credible.” Everything before that first and after that second sentence in the job creation/business plan section is normally template content: generic language that’s simply cut and pasted verbatim into every RFE job creation section. The template content is there for reference, and not necessarily a question or concern. Petitioners tend to be particularly spooked by a 2-3-page list of bullet points for business plan content, with item requests in categories from “Market Analysis” down to “Projections.” That list is in the RFE because it’s part of the RFE template (and I’ve seen versions of it since at least 2012). That list may or may not be in your RFE because the adjudicator read your business plan and found it to be deficient on any of those bullet points.

Step 2: Identify Underlying Eligibility Issues

Strategy does not stop with identifying specific questions in the RFE.  Lazy adjudicators are known to send RFEs with no case-specific questions at all – just an uncustomized RFE template. I’ve seen two such RFEs in the last month – a hint that the adjudicator didn’t even really look at the I-526 record yet, but just sent a generic RFE to get the ball out of the court for awhile. Or, sometimes RFEs specifically request evidence that does not exist for the particular business. Or the petitioner may know of clarifications that need to be added to the I-526 record, although the RFE didn’t request them. So it’s wise to not only react to specific RFE requests, but to stand back and think about the basic eligibility issues, and what can best be added to the I-526 record to support eligibility for I-526 approval and the road ahead.

For example, when an RFE asks for an improved business plan, the eligibility issue is job creation. An improved plan may not be necessary if it’s now possible to replace business plan predictions with the even more compelling job creation evidence of payroll records for employees already hired. When an RFE asks for supply contracts, the eligibility issue is whether the business is viable and active, to be able to create and sustain jobs. So if the business does not have supply contracts, the petitioner can think of other evidence to address the underlying concerns about business activity and feasibility. When the adjudicator was too lazy to look at the I-526 record and ask specific questions, the petitioner can still grasp the RFE opportunity to preemptively provide relevant answers.

For a recent RFE response, I worked with the client to prepare a business plan addendum designed to clarify ambiguities in the I-526 record and to explain COVID-19-related business plan adjustments in context of on-going eligibility. The client had received a generic RFE, with no specific questions about I-526 inconsistencies or subsequent developments. We responded by giving the adjudicator the correct and up-to-date information that we knew he’d need to understand and approve the petition, hopefully preempting confusion and challenge.  

EB-5 eligibility on the project side comes down to three things: (1) investment (2) in a new commercial enterprise (3) that creates jobs. Regardless of what specific items an RFE may request, the I-526 should be approved if the record manages to provide clarity and a preponderance of evidence for eligibility on those three basic points.

Step 3: Avoid Material Change Challenges

Many RFEs include this language in the “Conclusion” section, to remind petitioners of the peril in submitting new information.

If Petitioner submits updated or revised documents, please note that “[a] petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to [USCIS] requirements.” Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm’r 1998); see also 8 C.F.R 103.2(b)(1).

To navigate this Catch-22 for RFE business plan updates, the business plan writer should (1) know what was in the filed I-526, (2) take care to present new facts in context of continuity with the original I-526 filing, and (3) be able to support the basic message that the investment was eligible at the time of filing and remains eligible to this day, even through business developments and document updates. A good RFE business plan update takes care and labor, because it looks backward as well as forward. I start by reading the thousands of pages originally filed with I-526, so that I know where consistency can be highlighted and where new information needs explanation.  I do not only read the original business plan, because when USCIS says “business plan” they really mean “business plan plus supporting evidence,” and business plan updates involve supporting evidence as much as the document that says “business plan” on the cover.  

In the excitement of filing I-526, many people think about documents as mere formalities that exist to check boxes. I-526 can get filed with a document that says “business plan” on the cover, but that does not clarify and validate the specific business and how it meets EB-5 requirements. Unfortunately, some EB-5 business plan writers just specialize in business plan-like formatting, while others follow a snow job strategy of making the plan so confusing and long that the adjudicator will probably just approve it to avoid the work of wading through it.  But when an RFE comes, things get real. The I-526 RFE basically says “your business plan did not just check a box and I do actually want to understand it, and to be convinced that your specific investment qualified and still qualifies for EB-5.” At that point, it’s time to value a business plan with genuine business plan content and shaped by EB-5 expertise. And it’s time to look past the RFE questions and challenges to think through what specifically USCIS needs to know for the petition to succeed.

For more information, see my EB5 Investors Magazine article on Strategies for I-526 RFE business plan updates, and my RFE service page.