Strategies for I-526
RFE Business Plan
What pitfalls to avoid when receiving a request
for evidence on your EB-5 petition.
By Suzanne Lazicki
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.
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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