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During the adjudication process, United States Citizenship and Immigration Services (USCIS) may determine it needs more information or some form of clarification to proceed with a petition. In such cases, USCIS issues a Request for Evidence (RFE).
The first step to dealing with an RFE is understanding what an RFE is and what it entails. In some cases, the response process can be complicated and the response deadline tight, so you should consider seeking help from an experienced EB-5 consultant or immigration lawyer.
What is an RFE?
An RFE is a form of communication between USCIS and a petitioner through which USCIS asks the petitioner for additional information necessary for the adjudication of a petition. This tool allows USCIS to fill in any missing documentation, clarify any confusion, and correct any discrepancies.
USCIS officials must include specific details when issuing an RFE to ensure that the recipient can effectively address the problems identified. According to USCIS guidelines, an RFE should explain which eligibility requirements have not been met and why the evidence submitted with the original petition failed to meet these requirements. Additionally, it should list any missing evidence required by the relevant statute, regulation, or form instruction. Finally, it should provide examples of additional evidence that can be submitted to meet the eligibility requirements in question. In other words, an RFE should clearly identify what needs to be addressed, and it may include details on how the problem needs to be addressed.
One of the most common factors underpinning RFEs is inconsistencies in or a lack of detail about the major features of projects. Other common reasons for RFEs include a lack of third-party evidence supporting project feasibility, inaccurate financial projections, or that the marketing plan submitted does not prove that the business has the potential to operate successfully. In these cases, you may need help formulating your response, as clear guidelines on acceptable evidence are not always available. For example, you may need to submit a revised business plan, and seeking professional help will ensure that the revised plan answers the adjudicator’s questions.
Note that an RFE is not a denial, nor does it necessarily indicate the petition will be denied. If an application clearly does not meet the requirements of the EB-5 Program, USCIS may, at its discretion, deny it outright by issuing a Notice of Action denying the petition. When a petition includes enough initial evidence for a negative determination, however, USCIS may instead issue a Notice of Intent to Deny (NOID).
How is an RFE different from an NOID?
An NOID is similar to an RFE in that it gives the petitioner a chance to provide evidence to convince USCIS to approve the petition, but an NOID is much more urgent since it indicates a case is at a high risk of being denied. Upon receiving an NOID, a petitioner should act immediately to try to salvage his or her case.
While perhaps not as serious as an NOID, an RFE should be handled with care because a petitioner’s response will likely determine the outcome of the case. A petition that would otherwise be successful can be derailed if an RFE is not adequately dealt with.
Unlike an NOID, however, which is issued when the evidence is generally sufficient for a negative determination, an RFE is issued when a petition lacks sufficient information for a determination at all—or when some details of the petition are inconsistent with other details or are otherwise unclear.
How long does a petitioner have to respond to an RFE?
Upon receiving an RFE, a petitioner has a limited time to respond. The deadline for response will be indicated in the RFE and is typically between 30 and 90 days. Once an RFE is issued, all work on a case is halted—so a prompt response is important. Failure to respond by the given deadline will likely result in denial. Note that the date of issue—the day on which the countdown period begins—is the date that appears at the top of the RFE and not the date on which the RFE was mailed or received.
Can a petitioner send multiple responses to an RFE?
Typically, a petitioner has only one opportunity to respond to an RFE. Once USCIS receives a response, it will move forward with adjudication. If a petitioner sends an incomplete response or multiple responses, USCIS may not consider any evidence beyond what was sent in the first response packet.
A partial response may be appropriate, however, if a petitioner is unable to gather all the evidence requested by the deadline. An incomplete response is better than no response at all because failure to respond almost guarantees the petition will be denied.
Responding to RFEs
Receiving an RFE can seem intimidating, but you shouldn’t panic. In fact, since USCIS can deny a petition without issuing an RFE, you might think of an RFE as a second chance to convince USCIS to approve your petition.
While some RFEs are simple and clear requests for specific documents, others are more complicated. If in doubt, consult an experienced immigration attorney or seek professional RFE response assistance.
Review the RFE
An RFE typically covers five topics: the background to the application, the law, the evidence already submitted, the additional evidence needed, and the deadline. One of the first things you should do upon receiving an RFE is take note of the date the RFE was issued and the number of days given to respond. Be sure to mark the deadline on at least one calendar. Note that the deadline indicates when the response packet must be received by USCIS, not the postmark date.
You should make at least one copy of the RFE for your records; the original will constitute the first pages of your response packet. In addition to a copy for your records, consider making a copy of the RFE to mark up as you work through it.
Next, compare the list of evidence already submitted to the evidence listed in the original application. Sometimes documents go missing or adjudicators overlook evidence. If a document is missing, responding to the RFE might be as simple as resubmitting the document.
Carefully read the RFE and note the evidence USCIS is requesting as you go. USCIS expects specific documents that clearly prove your case. If you aren’t sure about what evidence will satisfy a particular request, you’ll need to conduct some research, consult a lawyer, or contact an EB-5 consultant. You must reply to every request—failing to do so will likely result in denial.
Research the RFE
After carefully reading through the RFE and listing the specific requests made by USCIS, research the laws, regulations, or other sources cited as support. Typically, an RFE cites regulations, memorandums, and USCIS guidelines in addition to cases and precedents set by the Administrative Appeals Office (AAO), Board of Immigration Appeals (BIA), Board of Alien Labor Certification Appeals (BALCA), Courts of Appeal, and the Supreme Court.
At times, the support cited by USCIS is taken out of context or is inconsistent with other USCIS guidelines, memorandums, or standard operating procedures. An RFE may also request information that has already been filed or, in some cases, ask for information that simply does not exist. USCIS adjudicators are not infallible and, sometimes, mistakes are made.
RFEs have also been used in attempts to ascertain information with no bearing on their respective cases. If you suspect some element of the RFE is not appropriate, legal, or otherwise correct, you should consult an experienced immigration attorney, who will be able to help you explain in your response how the requested documentation is inappropriate or does not satisfy any pertinent regulation.
Collect and compile the requested evidence
An RFE can be successfully overcome by providing the necessary evidentiary documentation in a clear and well-organized format. Use headings, subheadings, numbering, and bullet points as necessary to keep the content organized. Avoid lengthy paragraphs, and be sure to clearly indicate whether the content is fact or analysis. Present any data using graphs and charts.
Use the information in the RFE to structure a comprehensive, thorough response. When drafting the response cover letter, mirror the RFE to clearly demonstrate that the response packet fully addresses every issue raised. This will create a clear roadmap for the adjudicator showing how the response offers proof for each point included in the RFE.
In the simplest case, USCIS may request a specific document that you either failed to include in the initial filing or that the adjudicator overlooked. In these cases, you must simply provide the requested document. However, be sure to include the right document in the right format.
For example, an RFE may request a missing form. All necessary forms are available for free at the USCIS website. An RFE might also request affidavits from family and friends, which should be notarized. Or an RFE might requests some form of civil document—such as birth, marriage, and death certificates—which might not be available depending on your country of origin and other factors. The Department of State Reciprocity Tables indicate what documents can be substituted for others under given circumstances. (Please note that these guidelines differ between countries, so be sure to consult the table that matches your country of origin.)
In addition to requests for specific missing or deficient documentation, USCIS might issue an RFE because the adjudicating officer has doubts or a lack of clarity regarding your case. If this is so, you may have to accumulate additional evidence that may not be specified explicitly in the RFE. For example, if the original submission is based on data provided by the project managers rather than impartial third parties, you may need to include an economic analysis or another form of project documentation to support your application.
Sometimes, the adjudicator needs an explanation of how the provided evidence does, in fact, meet the requirements of the EB-5 Program. Such explanations will likely require the assistance of an immigration attorney or RFE response consultant.
Once you have gathered all the evidence requested, arrange the response packet with the original RFE on top, followed by a cover letter, and then all the requested documents presented in the order in which they were requested in the RFE.
Once you have completed the response packet, make an exact copy for your records.
Send the response to USCIS
The envelope provided by USCIS has a barcode used in the continued processing of your case, and so, if the entire response packet fits into the provided envelope, use it. If the packet will not fit, attach the envelope to the top of your response. If you do not include the envelope with the barcode, your case will be delayed further.
The RFE will indicate the address to which you should mail your response. Be sure to use this address even if you have sent other correspondence to USCIS at a different address. If you send your response to the wrong address you could miss the deadline or, at best, delay processing.
Send the response via priority or certified mail with some form of delivery confirmation, which will serve as proof that the RFE response was delivered to USCIS by the deadline. If sending the response on or near the deadline, you should send it using a next day or overnight delivery that would adequately ensure the response is delivered on time. Remember that the response deadline applies to the receipt—not the mailing—of the response. In other words, USCIS must receive your response on or before the deadline. The mailing date is irrelevant.
Once you receive proof of receipt from USCIS, attach it to your copy of the response packet. Upon receiving your response to the RFE, USCIS will usually take further action on your application within 60 days—but as always, wait times can vary greatly.
5 Tips for Avoiding and Processing Delays and RFEs
The visa application process is complex, and this is especially true of the EB-5 program, as applications involve complex supporting evidence. These tips can help you to avoid delays beyond the usual wait times caused by factors such as RFEs:
Follow the USCIS form filing tips, which cover everything from filling out to submitting forms.
If your address or contact details change during the adjudication process, update USCIS to ensure the agency can contact you if necessary.
Check the USCIS website for EB-5 filing resources, such as the Suggested Order of Form I-526 Documentation.
Remember to update public information about you, your business, the project, and anything else pertinent to your application. Adjudicators can refer to public information when processing your application.
Work with EB-5 experts to ensure that your application packets are complete and relevant, and to troubleshoot problems if they arise.
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