EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 82

Strategies for I-526 RFE Business Plan Updates What pitfalls to avoid when receiving a request for evidence on your EB-5 petition. By Suzanne Lazicki R e q u e s ts fo r Ev i d e n c e ( R F E ) o n I - 526 p e ti ti o ns frequently include this statement: “Upon reviewing the business plan, USCIS finds that the evidence in the record does not establish that the business plan is Matter of Ho compliant.” 1 Responding to such an RFE requires strategy. One must understand USCIS questions and concerns about the business plan, and also answer the questions in a way that avoids material change problems. The RFE response cannot simply replace the original I -526 business plan, but should provide supplementary information and evidence that helps the I-526 plan meet the “Matter of Ho compliant” standard. I. UNDERSTANDING BUSINESS PLAN- RELATED RFE QUESTIONS A . D I S T I N G U I S H B E T W E E N T E M P L AT E R F E CONTENT AND PETITION-SPECIFIC CONTENT Not every part of the I-526 RFE identifies a deficiency or asks a question. I-526 RFEs typically present questions about the business plan in a section titled “Job Creation.” Questions specific to the subject petition tend to appear in the middle of this section, surrounded by boilerplate content. The job creation section typically opens with template language that reviews the business plan requirement in the regulations at 8 C.F.R 204.6, and then quotes from precedent decision Mat ter of Ho to define a comprehensive business plan. This content is background, not a specific question or concern. Following this generic opening, the job creation section presents questions specific to the subject business plan. This personalized content should guide the response, because it certainly applies to the subject petition. 82 EB5 INVESTORS MAGAZINE Many RFEs conclude the job creation section with a stock checklist of detail and evidence that can support a business plan. This template content begins with the sentence “USCIS must be able to determine that it is more likely than not that the business plan is comprehensive and credible,” and introduces a bullet point list with the heading “Such evidence may include, but is not limited to:” followed by listed items in the categories of Market Analysis, Permits and Licenses, Contracts, Marketing Strategy, Business Organization, Staffing, and Projections. The bullet point list provides examples of what additional evidence “may include” to establish that a typical business plan is comprehensive and credible. This list is copied and pasted nearly verbatim into scores of R FEs, and not necessarily a checklist of case -specific deficiencies. Experience suggests that many adjudicators do not look for the listed items in the I-526 record or consider their applicability before simply copying the bullet points into an RFE. The list p r ov i d e s a h e l pf u l r e fe r e n c e , s h ow i n g h ow U S C I S unofficially expands on the Matter of Ho definition of a comprehensive business plan. But the bullet points are only a checklist for individual RFE response to the extent that the typical content/evidence items listed are indeed applicable to the subject petition, and not already in the I-526 record.