• The plan goes beyond “mere conclusor y
asser tions” to show that projections are not
merely speculative.
• The plan shows that the business “is feasible and
has the potential for long-term survival.”
• The plan is “comprehensive,” as defined by a
paragraph summar y of t ypical business plan
content from business description and market
analysis down to s taf f ing re quire me nts and
income projections.
• “Most impor tantly, the business plan must be
credible.” 2
When an RFE says “USCIS finds that the evidence in the
record does not establish that the business plan is Matter
of Ho compliant,” it means that USCIS has found that
the evidence does not sufficiently validate job creation
projections. Addressing that deficiency means adding
detail and evidence about the nature and timing of job-
creating activities. That may be as simple as providing
a status update to show how the project has progressed
since I-526 filing. 3 Additionally, the RFE response can
address any USCIS questions and concerns about the
original I-526 business plan.
D. IDENTIFY ALL QUESTIONS THAT BEAR ON THE
BUSINESS PLAN
Because the EB -5 business plan exists primarily to
justify claims about job creation, business plan-related
questions will mainly appear in the RFE section titled
“Job Creation.” However, watch for questions in other
sections that might need to be addressed in a business
plan update. Other RFE headings that could implicate
business plan content: New Commercial Enterprise,
Capital at Risk, Actual Undertaking of Business Activity,
and Capital Made Available to the Business(es) Most
Closely Responsible for Job Creation.
II. STRATEGIES FOR ANSWERING
BUSINESS PLAN RELATED RFE
QUESTIONS
Once having identified and understood relevant
questions about the I-526 business
plan, the RFE response can simply
answer them, right? Not so fast.
RFEs demand additional evidence,
but also place restrictions on that
evidence. The issue of “material
change” must shape the RFE
response and EB-5 business plan
updates.
The “Conclusion” section of each
I -526 RFE reminds petitioners
of the peril in submit ting new
information and documents.
84
EB5 INVESTORS MAGAZINE
If Petitioner submits updated or revised documents,
please note that “ [a] petitioner must establish
eligibility at the time of filing; a petition cannot
be approved at a future date after the petitioner
becomes eligibility under a new set of facts. See
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm.
1971). T h e r e fo r e , a p e t i t i o n e r m ay n o t m a ke
material changes to a petition that has already been
filed in an effort to make an apparently deficient
petition conform to [USCIS] requirements.” Matter
of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm’r
1998); see also 8 C.F.R 103.2(b)(1).
Matter of Izummi gives the example of a business that
submitted a plan to qualify as a “troubled business” but
did not qualify as such. The petitioner tried to rectify
the proble m by submit ting a “comple tely dif fe re nt
business plan.” The Administrative Appeals Unit found
that “acceptance of the new
business plan at such a late date
w a s i m p r o p e r a n d e r r o n e o u s .”
The new business plan was too
different from what was originally
filed with I-526, to the point that it
changed the grounds for eligibility.
“ I f c o u n s e l h a d w i s h e d to te s t
the validit y of the newes t plan ,
which is materially different from
the original plan, he should have
withdrawn the instant petition and
advised the petitioner to file a new
Form I-526.” 4
"RFEs demand additional
evidence, but also place
restrictions on that
evidence. The issue of
“material change” must
shape the RFE response
and EB-5 business plan
updates"