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EB-5 Insights Where Government Policies and Business Realities Converge

I-526 TREND: Delays in Receiving Requests for Evidence

Posted in I-526, Immigrant Investor, USCIS

Investors and their attorneys alike have taken note of a disturbing trend recently:  when USCIS issues a Request for Evidence (RFE), it is oftentimes not received by either party.  Typically, RFEs are mailed in hard copy, and a copy is mailed to the Investor, and a second copy is mailed to the attorney of record.  In almost all cases with I-526 RFEs, the Investor is given 87 days to respond if he or she resides in the United States, and 98 days to respond if he or she resides outside of the United States.   Recently, upon checking the status of a case using the USCIS online portal, the Investor and/or attorney will find that “A Request for Additional Evidence Has Been Mailed,” on a specific date; however, frequently the RFE is never received by either party, including the attorney of record that should receive a copy of all communications from USCIS.  Common protocol is to follow up with USCIS via email, but some have experienced 1) unresponsiveness from USCIS, sometimes taking a several weeks to respond; and 2) the officer responding is unwilling to attach the RFE to the email correspondence without proof the RFE was not delivered, a standard which is impossible to prove given that USCIS mails the RFEs via U.S. Postal Service with no delivery tracking.

Why this is problematic:

1. Investors lose time to respond to the RFE.  While some RFEs have simple requests, others ask for an abundance of information that will take time to obtain, either from the EB-5 Project or the investor.  By not receiving the RFE within a week or two of issuance, Investors lose precious time that USCIS will not add onto the deadline.

2. Investors sometimes do not know if there is an RFE issued by USCIS.

3. USCIS is not sending the RFEs, even when requested by the designated attorney of record.  When contacted, the Immigrant Investor Program (IPO) officer sometimes will attach the RFE onto the email; however, we have noted a trend where the officer will not attach the RFE without proof that it was delivered.  This is problematic as it is virtually impossible to show something was not delivered unless the other party (USCIS) has a tracking number.  In addition, the constant communication causes a loss  of time the Investor needs to respond to the RFE.

Tips:

Though we will continue to follow up with USCIS, we note that there are certain actions that can be taken in the meantime if you are facing this issue:

1. If either your firm address or the Investor’s address has changed, inform USCIS right away so that the correspondence goes to the correct address.

2. Check the case status as frequently as possible online at http://www.uscis.gov/ to see if an RFE was issued.

3. Contact USCIS at USCIS.ImmigrantInvestorProgram@uscis.dhs.gov for an update.  You can include the Investor name, attorney of record information, and receipt number, as well as a screenshot of the USCIS site showing the status of the case.

4. Follow up with USCIS if you do not hear back.

Greenberg Traurig will continue monitoring these issues and will update if there are new procedures established to cure this problem.

For more information on I-526, click here.

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