B. IDENTIFY UNDERLYING ELIGIBILITY ISSUES
I-526 RFEs may request business plan evidence that is
not available. The RFE response can still succeed, if it
looks beyond the specific evidence requests to identify
the concerns behind the requests. With eligibility issues
in focus, the RFE response can then present the best
available evidence that addresses USCIS concerns.
For example, the RFE may request a copy of the building
permit for a construction project. The eligibility issue
behind this request is timely job creation. When the RFE
asks for a building permit, it is asking for assurance
that the project really will move forward and create jobs
within the required timeline. If a building permit does not
exist yet, then the RFE response should highlight the best
available evidence that the business plan can and will be
implemented shortly and meet job creation deadlines.
The conclusion to every RFE clarifies the RFE purpose
and standard for success: “Petitioner must prove by a
preponderance of the evidence – in other words, that it is
more likely than not – that Petitioner is fully qualified for
the benefit sought.” A good RFE business plan response
marshals a critical mass of evidence to address USCIS
concerns about petitioner eligibility with respect to job
creation. This evidence may go beyond the specific
documents suggested in the RFE.
C. UNDERSTAND THE “MATTER OF HO COMPLIANT”
STANDARD
The term “Matter of Ho compliant” is shor thand for
everything USCIS would like to see in an EB-5 business
plan. The term specifically references the EB-5 business
p lan g oal and s tandards d ef in e d in th e p re c e d e n t
decision Matter of Ho.
Standards Defined by Matter of Ho for a Compliant EB-5
Business Plan
• EB-5 BUSINESS PLAN GOAL:
• “to meet the petitioner’s burden of showing that
he will create 10 permanent, full-time positions
within the next two years”
• “to enable the Service to determine whether the
job creation projections are any more reliable
than hopeful speculation”
• “ to p e r m i t t h e S e r v i c e to d r a w r e a s o n a b l e
inferences about the job creation potential”
• EB-5 business plan characteristics to achieve the
goal:
•
The plan is “sufficiently detailed” to suppor t
reasonable inferences about job creation
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