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EB-5 RFE & NOID Response Case Study
Response Case Study
The right response to RFEs and NOIDs is critical to the success of a petition. Petitioners are far more likely to be accepted by USCIS if they follow best practices for RFE and NOID responses.
When the USCIS makes a request for evidence (RFE) or a notice of intent to deny (NOID), the receiver must respond satisfactorily or risk having the petition refused. But what exactly qualifies as a suitable answer to an RFE or NOID? And what are the procedures and practices that lead to success?
By adopting the RFE and NOID best practices outlined below, a petitioner increases their chances of successfully overcoming the RFE or NOID and receiving a favorable decision on their petition.
Each RFE and NOID is unique, and each response necessitates a tailor-made strategy. The RFE and NOID response process should include arranging a response team, gathering the necessary evidence that addresses the specific concerns indicated in the RFE or NOID, and then filing the response by the deadline.
Organize a Response Team
Consultation with an experienced and competent EB-5 specialist, whether a consultancy business or a qualified attorney, is critical in crafting an effective response to an RFE or NOID. It is advisable to hire an expert who can manage the full procedure in-house. In the case of investor-specific RFEs or NOIDs, the investor’s immigration counsel must also be included in the response process.
If a petitioner chooses to reply to an RFE or NOID on his or her own, putting together a team of skilled people to handle different aspects of the process is critical to success. Project documentation such as the business strategy and economic report may need to be revised, financial information generated, budgets updated, timelines clarified, and third-party verification sought. In addition, a professionally written cover letter and a well-organized set of exhibits will be required. Careful proofreading is also necessary.
These many complexities in designing a successful response need the formation of the correct team from the start. The most critical aspect of the response process is coordinating an effective team. The proper staff will understand how to respond to any USCIS issue and will be able to do it on time. A denial will result from selecting the incorrect team.
Respond to Each Concern According to USCIS
RFEs are requests for further evidence required by USCIS to judge a petition. Responding to RFEs entails carefully analyzing the list of requests and providing the relevant proof.
NOIDs, on the other hand, indicate a systemic issue with a petition and will almost certainly necessitate a more thorough remedy that may include major document modifications, extra third-party support paperwork, and other proof.
A thorough, forensic answer is required when replying to an RFE or a NOID. A well-written cover letter is required to include explanations, amendments, and detailed arguments that address each concern raised by USCIS; the cover letter must then point to neatly arranged exhibits that support each clarification, amendment, and argument.
An RFE or NOID may contain a request for clarification on how a specific piece of evidence demonstrates compliance with the EB-5 program rules. Citing the legislation, USCIS memorandums, and similar paperwork is important and frequently required in such circumstances to indicate that the initial proof is genuine. To fully resolve such concerns, an immigration attorney or certified EB-5 consulting business may be required.
RFEs and NOIDs frequently demand new documentation, which may include considerable adjustments to the business plan, economic assessment, offering papers, budgets, timetables, and so on. Any modifications made in response to an RFE or NOID must be meticulously noted in the response cover letter.
Permits, receipts, bank records, land titles, letters of intent, and other papers may also be required. Compiling these extra papers into a thorough but simple collection of exhibits is a vital element of the process, as is appropriately mentioning these exhibits inside the cover letter as part of the answer to specific points raised by USCIS.
Please submit your response by the deadline.
It is critical to submit the response by the deadline. USCIS typically provides RFEs 87 days to reply and NOIDs 33 days to respond.
For RFE and NOID answers, USCIS sends an envelope. This envelope contains a barcode that USCIS will utilize while it processes the case, so use it if the whole response—including a copy of the RFE or NOID, the cover letter, and any exhibits—fits within. If the answer papers do not fit, the supplied envelope should be placed on top of the response package to avoid processing delays.
The answer should be delivered through priority or certified mail with delivery confirmation, which serves as verification that the RFE or NOID was received by USCIS before the deadline. If the response is due on or near the deadline, next-day or overnight delivery may be required. The response must be sent on time.
Case Study on NOID
Consider a NOID granted by USCIS to an individual EB-5 investor who engaged in a big hotel rehabilitation project in New York State as an illustration of these best practices. In response to her Form I-526 application, the investor received a NOID. According to the NOID, the investor failed to demonstrate her eligibility under the EB-5 program for the following reasons:
(A) Form I-526 was missing.
(B) Other investors in the same project shared the postal address on Form I-526.
(C) The capital invested was insufficiently connected to the business most directly responsible for employment generation.
(D) The evidence did not prove that the invested capital was legally obtained and traded.
(E) The business plan did not adhere to the Matter of Ho.
Best Practice #1: Form a Response Team.
To resolve the NOID in this situation, the investor worked with her immigration attorney and recruited an experienced EB-5 consulting business.
The EB-5 consulting firm would take the lead in crafting the answer to the NOID by writing a cover letter that was word for word identical to the NOID. The investor’s immigration attorney would handle points (A), (B), and (D) from the NOID, while the consulting business would handle points (C) and (E).
Best Practice #2: Respond to each USCIS-identified issue.
The investor’s immigration counsel handled point (A), which required the completion of Form I-526, which was lacking responses for page 5, questions 10 through 20, and page 6, question 11.
The immigration counsel also addressed point (B), which included confirming through documentary proof that the investor did indeed live at the location provided on her I-526 petition.
The EB-5 consulting business handled point (C). The main objection addressed in this section was a lack of evidence that the investor’s funds was truly sent to the job-creating organization (JCE).
The consulting firm’s answer initially provided an update to the sources and uses chart, which was used to identify the JCE and demonstrate the flow of monies from investors to the actual rehabilitation project. This revised graphic was mentioned in the cover letter and was sent as an exhibit.
Following that, the answer submitted annotated bank documents demonstrating the transfer of monies from the EB-5 investors into the bank account of the new commercial company (NCE), as well as the subsequent movement of cash from the NCE’s account to the JCE’s account. The letter also included the date and transaction number of the investor’s $800,000 capital contribution deposit into the NCE’s bank account. Each of these cover letter facts points to the actual annotated bank documents submitted as an exhibit to the answer.
The lack of a construction financing agreement, which the business plan suggested would be included in the file, was a secondary problem noted by USCIS in point (C). As a result, a construction loan letter of intent and term sheet was included as an exhibit in the response package and referred to in the cover letter.
Point (D), which needed additional documentation of the investor’s funds’ legal source and course, was handled by the investor’s immigration counsel. To address this issue, several contradictions in claims on Form I-526 and a letter accompanying that form have to be clarified. The USCIS also demanded more proof that a gift from the investor’s father utilized in the transaction was legitimately obtained by the father. The attorney provided documentation of the father’s work and tax history as an exhibit.
The EB-5 consulting firm addressed point (E), which comprised a list of many problems addressing particular claims in the business plan and its supporting documents. As a result, dealing with this set of challenges necessitated rewriting the business plan to accurately depict the new project circumstances, such as the construction timetable and budget. The whole new business plan was presented as an exhibit. The economic impact study, which was also included in the response package, had to be amended.
The EB-5 consulting business combed through each of the points stated by USCIS one by one in the response cover letter, providing clarifications, explanations, and proof to back up each allegation. Updated schedules, permits, and licenses; a letter of intent; business registration paperwork; a property deed; a developer equity contribution letter; and other pertinent documents were all mentioned in detail in the cover letter and provided as exhibits to the answer.
Best Practice #3: Submit Your Response Before the Deadline
The EB-5 consulting business completed its work authoring the cover letter and assembling the collection of evidence several days before the deadline and electronically delivered this information to the investor’s immigration attorney. The attorney had also created the relevant documents to answer points (A), (B), and (D), and when the material arrived from the EB-5 consulting business, he included his work into the document package. The entire answer was then timely filed by the counsel.
The investor’s petition was accepted by USCIS.