At any stage of an EB-5 case, USCIS may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). Receiving one does not mean the case has failed, but the quality of the response largely determines the outcome. This article explains the difference between the two notices, the deadlines, the most common issues, and how to organize a response.
RFE vs. NOID
| Factor | RFE | NOID |
|---|---|---|
| Nature | USCIS finds the evidence insufficient and asks for more | USCIS has preliminarily concluded the case does not qualify and offers a final chance to respond |
| Severity | Moderate; most RFEs are followed by approval | High; the response must overturn USCIS’s preliminary conclusion |
| Response period | Generally longer; as stated in the notice | Generally shorter; as stated in the notice |
| Content of response | The evidence listed in the notice | Point-by-point rebuttal of USCIS’s reasoning plus supporting evidence |
| If no response | Decision on the existing record, usually denial | Denial |
In short, an RFE says “give me more evidence”; a NOID says “I intend to deny unless you persuade me otherwise.” A NOID usually signals substantive doubt about a core fact, such as the lawfulness of the funds or the project’s eligibility.
Deadlines
The response deadline appears on the first page of the notice and runs from the notice date. Follow the date in the notice. As general rules:
- RFE response periods are commonly up to about 87 days, including mailing time;
- NOID response periods are commonly about 30 days, including mailing time.
Two points are critical:
- The date USCIS receives the response controls, not the mailing date. Allow ample time for international courier delivery.
- Extensions are generally not available. USCIS ordinarily does not grant extension requests; a late response is treated as no response.
The first step after receiving a notice is to mark the deadline and work backward to schedule document collection, translation, attorney drafting, and courier time.
The most common EB-5 issues
Source of funds
This is the leading cause of I-526E RFEs. Typical problems:
- The timeline of accumulation does not match tax records.
- Gift evidence stops at the donor without tracing the donor’s lawful source.
- Real estate sale proceeds do not match appraisals or transaction records.
- Dividends paid without a corporate resolution or tax record; commingled business and personal accounts.
- Unclear foreign-exchange path, or third-party payments.
- Loan proceeds used as capital without showing the investor is primarily liable for repayment.
Job creation
- Economic report inputs (spending, revenue, timeline) are inconsistent with actual evidence.
- Jobs from construction lasting less than two years exceed the 75% cap.
- Indirect jobs exceed the 90% cap.
- At the I-829 stage, actual expenditures fall short of plan and job counts are insufficient.
Targeted Employment Area
- The source or method of unemployment-rate data for the census tract is questioned.
- Rural designation conflicts with MSA boundaries or population data.
- Under the RIA, TEAs are designated by USCIS; TEA evidence at the I-956F stage is insufficient.
Other recurring themes
- Whether the capital is truly at risk (for example, guarantee or buy-back arrangements).
- Disclosure of relationships between the investor and project parties.
- Incomplete translations or missing translator certifications.
- Missing identity or family relationship documents.
Response strategy
Step 1: read the notice closely
Analyze each point of concern and distinguish between evidence USCIS is genuinely asking for and points where USCIS has misread the record. Some RFEs use template language that does not fully fit the case. The response should supply the requested evidence and also point out where the original filing already addressed the concern.
Step 2: build the response framework
A well-organized response usually contains:
- An attorney cover letter addressing each USCIS concern in order and indicating where in the exhibits the answer appears.
- An exhibit index with exhibit numbers and page references.
- New evidence grouped by issue, with complete translations and translator certifications.
- References to previously submitted evidence, citing where it appears in the original filing and attaching copies where helpful.
- Expert input where appropriate: an economist’s supplement on job methodology, an accountant’s verification of financial records, or a legal opinion.
Step 3: close the loop on each issue
Using source of funds as an example, USCIS needs an unbroken chain: funds earned, taxed, deposited, transferred, converted, wired to escrow, invested in the NCE. Do not add one document; fill both sides of the gap.
Step 4: avoid creating new problems
New evidence can contradict the original filing (for example, a newly supplied statement reveals a large deposit the narrative never mentioned). Check every new document against the original petition for consistency before submitting.
Step 5: respond once and completely
USCIS accepts a single response. Nothing can be added after it is mailed. Err on the side of including more.
Special handling for a NOID
A NOID response must go beyond adding evidence and affirmatively argue why USCIS’s preliminary conclusion is wrong. Effective approaches:
- Cite the governing law and policy, such as INA 203(b)(5), 8 CFR 204.6, and USCIS Policy Manual Vol. 6 Part G, to show where USCIS applied the wrong standard or misstated the facts.
- Identify evidence in the record that USCIS overlooked or misread.
- Aim new evidence directly at the central doubt in the NOID rather than adding general material.
For a NOID, the attorney should lead the entire response, with the investor supplying facts and documents.
Working with your attorney
- Forward the notice immediately. USCIS usually mails both the applicant and counsel, but do not assume the attorney has it.
- Provide originals, not summaries. Counsel needs the complete bank statements and contracts, not the investor’s digest.
- Be candid. If part of the fund path is awkward to explain, tell the attorney up front and let counsel decide how to address it. That is far better than USCIS discovering it.
- Coordinate with the regional center. RFEs about job creation, TEA, or project documents require updated reports and evidence from the regional center; the investor should make contact promptly and follow up.
- Confirm receipt. Keep the courier delivery record and USCIS’s acknowledgment.
After a denial
If the case is denied after a response, the applicant may consider a motion to reopen or reconsider, an appeal, or a new filing where circumstances permit, following the instructions in the denial notice. Each route has its own deadlines and conditions, and counsel should evaluate them in light of the stated grounds.
Key takeaways
- An RFE asks for more evidence; a NOID signals intent to deny and requires an affirmative rebuttal.
- Deadlines are set in the notice, measured by the date USCIS receives the response, and are generally not extendable.
- The most common EB-5 issues are source of funds, job creation, TEA, and whether the capital is at risk.
- Respond point by point, close every evidentiary gap, stay consistent with the original filing, and submit once.
- Project-level issues require evidence from the regional center; the investor coordinates.
- The attorney leads the response; the investor provides complete original documents and candid explanations.
This article is general information, not legal advice. Contact an immigration attorney immediately upon receiving an RFE or NOID.