Thanks to the EB-5 program, thousands of foreign nationals have been able to move to the United States and reap the benefits of becoming permanent residents. Moreover, the EB-5 program’s regulations for investors are straightforward and accessible.
According to United States Citizenship and Immigration Services (USCIS), foreign nationals can participate in the EB5 investment program if:
- Their investment meets the minimum threshold.
- They invest in a qualifying business where the invested funds are at risk.
- They create a minimum of ten full-time jobs.
- Their funds are traceable to a legal source.
After a foreign national has made a qualifying EB-5 investment, they must file Form I-526, which is used to check that all the above requirements have been met. Once USCIS approves this petition, the investor will be able to obtain conditional permanent resident status.
However, not all Form I-526 applications are straightforward. If USCIS requires more information or clarification, the investor will receive a request for evidence (RFE). This article aims to provide information on RFEs and how investors can respond to them successfully.
The Purpose of an RFE
RFEs are sent by USCIS when an investor’s visa petition contains incomplete, inaccurate, or inconsistent information.
Although receiving an RFE is a setback in the adjudication process, it does not mean that the I-526 petition has been denied. Once the requested information has been received by USCIS, they can reevaluate the investor’s petition. The investor will receive clear direction on exactly what information needs to be provided. For example, USCIS adjudicators will include specific details about what is missing from the investor’s petition or where further clarification is needed.
Some common reasons for an RFE include insufficient details about the EB-5 project or a lack of third-party evidence supporting the project’s usefulness. Therefore, investors should make sure that their projects’ business plans are proactive before filing Form I-526.
Responding to an I-526 RFE
EB-5 investors must answer RFEs fully, accurately, and promptly. The key to successfully responding to an RFE is to carefully note its contents, which explain what was missing from the I-526 petition. For instance, some RFEs ask for missing forms or documents.
It is also important to write a cover letter explaining which new documents are being submitted. Investors should include a list of each new piece of evidence being submitted and indicate which request it relates to, preferably in the same order used in the RFE. This helps the USCIS adjudicators assess the new data and check whether all the requirements have been fulfilled.
After the cover letter, investors should attach all the missing forms or documents that were requested by USCIS. This information must be presented in a highly organized and readable manner. Of course, the deadline given by USCIS must be honored in order for the I-526 petition to be reevaluated.
More Complex RFEs
Sometimes, RFEs are not straightforward, and USCIS might question the EB-5 investment business plan. In this scenario, investors will need to prove that the project they selected for their EB-5 investment will be successful and stimulate the economy.
For example, proving that the EB-5 investment will generate jobs might require the investor to submit records related to the company’s staffing. USCIS could also require that the investor show compliance with the at-risk funds criteria or another EB5 investment requirement. Therefore, the investor may have to provide further information on the project’s business plan. It might also be necessary to give detailed information about the project’s escrow model.
EB-5 investors should keep in mind that RFEs look for supporting evidence of the initial petition’s claims. The evidence and clarifications provided in response to the RFE should always be consistent with the details in the original I-526 petition. Any significant change to the business activity or investment may constitute a “material change” and result in a denial of the I-526 petition.
The process of applying for the EB-5 investment program can be complex. Investors will benefit greatly from the guidance provided by immigration counsel and EB-5 firms that offer RFE response consulting.