Free RFE Evaluation
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Request for Evidence (RFE) Responses
To most petitioners, an RFE means a step toward the denial of their application. We take a different view. While not a welcome response to an initial submission, it is nonetheless an opportunity. Why? An RFE is just that: It is a Request for Evidence. Usually, the USCIS wants more information or decides that the petition is completely missing some required information. The RFE is an opportunity to explain your petition in more detail to ensure that the adjudicator understands correctly what they are reading.
There are certainly times when you look at your documentation and wonder how they could have asked about something that was right in your plan already. While this can be annoying, we have found that the best--and most successful--approach is to simply answer the RFE point-by-point. Using this approach, we have never had a second RFE issued once the first one was answered.
According to the Policy Memorandum: SUBJECT: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) issued on July 13, 2018, an RFE is defined as follows:
USCIS issues written notices in the form of a request for evidence (RFE) to request missing initial or additional evidence from applicants or petitioners who filed for immigration benefits.
When an RFE is appropriate, it should:
(1) identify the eligibility requirement(s) that has not been established and why the evidence submitted was not sufficient;
(2) identify any missing evidence specifically required by the applicable statute, regulation, or form instruction;
(3) identify examples of other evidence that may be submitted to establish eligibility; and
(4) request that evidence.
Our RFE Response Approach
Whatever the case, we answer each RFE point by point. If one of the questions relate to something not in the business plan or economic study, we indicate where the answer to that question can be found. This allows for a cohesive response. We will coordinate, upon request, assembling all of the information necessary to answer the RFE--including information that is not normally within our purview.
Our RFE responses are thorough and we assume responsibility for gathering and correcting any information in the business plan and/or the economic study.
Turnaround time is two to three weeks depending on how long it takes us to get all of the information required to answer the RFE. If necessary, we will try to complete it more quickly to accommodate an abbreviated timeline.
The Good News: If your business plan or economic study needs to be redone as part of the response, we are quite well-qualified to do that.
Our Track Record
We have answered 40 RFEs, 10 for projects that we participated in and the remainder for those we did not. In half the cases, we assembled all of the documentation for the response and for the other half we worked with an attorney. All but one were successfully resolved.
Why Did We Fail to Resolve One of the RFEs? One of our clients was requesting a sizable sum to fund a continuum of care development for elderly citizens. When we were given his basic financial structure, he was told that the financials were not transparent; and, that he would not be able to get his personal previous debt paid off as part of the EB5 investment. The RFE predictably required that these two items be revisited. The client refused to allow us to change the financials and the petition was denied. Fortunately, no investors had yet put their money into the project. Situations like this we cannot fix.
A Highly Successful RFE Response. Another of our clients was likewise developing a large hospitality and entertainment venue--so large, in fact, that it covered area in four counties. This involved a simultaneous Regional Center submission. Some of the RFE was devoted to inconsistencies in the client's proposed operation of the regional center but virtually all of the rest of it related to lack of market validation for the various components and inconsistencies in the economic study (which we did not prepare). We essentially rebuilt the framework for the operation, completely redid the financial structure and redid the economic study. The Regional Center and plan were then approved. This we can do.
A Not-So-Successful NOID Response. The USCIS refused to accept our NOID response and instead led the owner of the Regional Center away in shackles. Enough said.
An NOID Response With a Better Outcome. We have prepared a number of NOID responses related to this issue. One client received an NOID because his annual I-924A indicated no activity for the third consecutive year. The NOID was answered with resubmission of an actual plan (with study) with evidence that the project had been started, a definite timeline for completion, evidence of a bridge loan, and a signed agreement with a contractor. This was acceptable.
The RFEs We Have Seen
We have answered many RFEs. While there are no typical RFEs, by far the majority have been for L1A and EB5 petitions. Most often, we are approached by attorneys that have made the initial submission and would like us to answer the RFE.
When we answer an RFE for one of our own clients, it is obviously somewhat easier since we are familiar with the business plan and economic study, if there was one. Rarely have we had to completely rewrite an EB5 plan but we usually start over with the plans for the L1A RFEs (L1A RFE sample). The EB5 RFEs have been requests for clarification of the basis for financials or job calculations with some textual questions.
L1 plans, on the other hand, are most often missing required documentation of some sort. The list of required documentation for the L1 petition is not particularly difficult; sometimes things just get overlooked. While the number of RFEs issued shown in the paragraph below may seem daunting, they do not represent the number of petitions that were ultimately approved.
The sampling of RFE data below shows that in the L1A and L1B categories, the number of petitions that received RFEs increased by 21% between 2015 and 2018. The number of petitions with RFEs that were ultimately approved during the same period increased by the same percentage. What this means is that RFE responses are successful as long as they are properly prepared.
Find more statistics here on visa approvals and denials here.
Sample L1A Request for Evidence (RFE)
Sample EB5 Request for Evidence (RFE)
Includable Expenses for Job Creation (Download EB5 Interactive Series - Expenses)
VIBE - Validation Instrument for Business Enterprises (Download VIBE)
Matter of Ho
Matter of Hsiung
Matter of Izummi
Matter of Soffici
USCIS 1-485, I-765 RFE Information (Download USCIS I-485, I-765 RFE Information)
Policy Memorandum: Application RFE Response Time (Download Policy Memorandum: Application RFE Response Time)
Policy Memorandum: Requests for Evidence and Notices of Intent to Deny (Download Policy Memorandum: Requests for Evidence)
Learn More About It
Job Creation Includable Expenses
Eligible Hard Construction Expenditures, Soft Costs, and Transfers Hard Cost Construction Expenditures
• USCIS economists will typically ask for itemized information to ensure that only eligible costs are input into an accepted economic model or other methodology.
• Simply stated, total aggregate hard costs will likely be insufficient to demonstrate eligibility. Rather, costs should be broken down into specific expenditure categories (such as masonry work, plumbing, flooring, hardscaping, softscaping, etc.), so that USCIS economists can assess whether these costs are reasonable inputs.
• Certain types of evidence may strengthen the credibility of a filing. For example: If the assumptions are accompanied by a third-party market feasibility report, or if a developer shows a successful track record in completing similar projects. The important thing to remember is that the burden is on the petitioner to provide sufficient evidence.