Request for Evidence (RFE) Rates and Patterns
Data current as of · Source: USCIS FOIA Data
A Request for Evidence (RFE) is a written notice from USCIS asking the petitioner to provide additional documentation before a final decision can be made. RFEs are among the most common adjudication events in the EB-5 program, affecting a significant share of both I-526E investor petitions and I-829 condition removal petitions. This page analyzes RFE issuance rates, the most frequently cited deficiency topics, and resolution outcomes based on USCIS data obtained through FOIA requests.
Key Takeaways
- 1Approximately 38% of I-526E petitions and 45% of I-829 petitions receive at least one RFE during adjudication, making evidence requests a routine part of the EB-5 process rather than an indicator of likely denial.
- 2Source of funds documentation is the single most common RFE topic, cited in 42% of all EB-5 RFEs. This reflects USCIS scrutiny of the lawful path of investment capital from its origin to the new commercial enterprise.
- 3The majority of petitioners who receive an RFE and submit a timely, substantive response ultimately receive approval. An RFE is an opportunity to strengthen the record, not a preliminary denial.
- 4Proactive preparation of comprehensive source of funds documentation, detailed job creation analyses, and current TEA designation evidence before filing substantially reduces RFE likelihood.
RFE Rates by Form Type
38% of adjudicated cases receive at least one RFE
45% of I-829 cases receive at least one RFE
12% of EB-5 AOS cases receive an RFE
Source: USCIS FOIA response data. Rates represent the percentage of adjudicated petitions that received at least one RFE prior to a final decision. Petitions that were withdrawn, terminated, or administratively closed are excluded.
Most Common RFE Topics
When USCIS issues an RFE on an EB-5 petition, the notice typically identifies one or more specific areas where the existing record is insufficient. The following breakdown shows how frequently each topic appears across all EB-5 related RFEs.
Percentages represent the share of EB-5 RFEs that include each topic. A single RFE may address multiple topics, so percentages can sum to more than 100%.
What Triggers an RFE
Understanding why USCIS issues RFEs is essential for both investors and their immigration attorneys. Each topic area reflects a specific statutory or regulatory requirement that the adjudicator found insufficiently documented in the initial filing.
Source of Funds (42% of RFEs)
USCIS requires a complete evidentiary trail showing that the investor's capital was obtained through lawful means. This includes documenting the original source (such as salary, business income, real estate sales, gifts, or inheritance), any intermediate transactions, and the final transfer to the new commercial enterprise. RFEs in this category frequently request additional bank statements, tax returns, corporate records, loan agreements, or third party verification letters. Investors whose funds pass through multiple accounts, entities, or jurisdictions face heightened scrutiny.
Job Creation Documentation (24% of RFEs)
The EB-5 program requires that each investment create or preserve at least 10 full time jobs for qualifying U.S. workers. For regional center projects, job creation is typically demonstrated through an economic impact study using an approved input/output methodology (such as RIMS II or IMPLAN). RFEs in this area often question the assumptions underlying the economic model, the reasonableness of construction expenditure estimates, or the timeline for job creation relative to the sustainment period. Direct investment petitions may receive RFEs requesting payroll records, tax filings, or W-2 forms for each claimed employee.
TEA Designation Evidence (14% of RFEs)
Many EB-5 investors file under the reduced investment threshold ($800,000) by investing in a Targeted Employment Area. Under the Reform and Integrity Act, TEA designations for rural areas and high unemployment areas follow specific criteria. RFEs in this category may request updated census data, a corrected geographic boundary analysis, or evidence that the project location falls within the designated area. Since the March 2022 reforms, TEA designation methodologies have changed, and petitions relying on pre-reform designations may receive RFEs seeking compliance with the current framework.
Business Plan Deficiencies (10% of RFEs)
USCIS evaluates the business plan submitted with the petition to determine whether the proposed enterprise is viable and whether the investment will achieve its stated objectives, including job creation. Under the Matter of Ho framework, the business plan must be detailed, credible, and supported by verifiable assumptions. RFEs in this area commonly request more specific financial projections, market analysis, management team qualifications, or a revised timeline demonstrating that jobs will be created within the required period.
At-Risk Requirement (6% of RFEs)
EB-5 regulations require that the investor's capital be placed "at risk" for the purpose of generating a return. This means the investment must carry genuine commercial risk and cannot be structured with guaranteed redemption, excessive collateral, or repayment arrangements that effectively eliminate the possibility of loss. RFEs on this topic typically question the terms of the investment offering, including promissory note terms, escrow conditions, or exit strategy provisions that may suggest the capital is not truly at risk.
RFE Resolution Outcomes
Receiving an RFE does not mean a petition is likely to be denied. In most cases, petitioners who respond with comprehensive, well organized documentation receive approval. The following outcomes reflect aggregate resolution data for EB-5 petitions that received at least one RFE.
Approval after RFE response. The majority of petitioners who submit a complete, timely response to an RFE receive a favorable decision. Successful RFE responses typically include all requested documentation, a well structured cover letter that addresses each specific deficiency cited by USCIS, and supporting legal arguments with citations to applicable regulations and policy guidance.
Denial after RFE response. Denials following an RFE most commonly occur when the response fails to address the specific deficiency, when the supplemental evidence contradicts information in the original filing, or when the underlying issue (such as unlawful source of funds) cannot be cured through additional documentation. Petitioners who receive a denial after an RFE response may file a motion to reopen or reconsider, or they may appeal to the Administrative Appeals Office (AAO).
Withdrawn or abandoned. A meaningful portion of RFE cases never reach a final decision because the petitioner withdraws the petition or fails to respond within the 87 day deadline. In some cases, the RFE reveals a fundamental problem with the petition that the petitioner decides not to contest. In others, changed circumstances (such as project failure or personal decisions) make continued pursuit of the petition impractical.
Resolution percentages are approximate and derived from aggregated FOIA data across multiple fiscal years. Individual outcomes vary based on the specific deficiency, quality of the RFE response, and adjudicator discretion.
Best Practices for Avoiding RFEs
While RFEs cannot be entirely eliminated, thorough pre-filing preparation significantly reduces their likelihood. The following strategies address each major RFE topic area and reflect guidance from USCIS policy manuals and AAO precedent decisions.
Source of Funds Preparation
- Document the complete chain of custody from original source to the new commercial enterprise, including every intermediate account and currency conversion.
- Provide five or more years of personal and business tax returns in the source country, translated and certified where required.
- Include bank statements showing the accumulation of funds over time, not just the final transfer amount.
- For gift or inheritance based funds, submit notarized declarations, probate records, or gift tax filings alongside the donor's own source documentation.
Job Creation Documentation
- Engage a qualified economist to prepare the economic impact study using current, verifiable expenditure data and recognized methodologies (RIMS II or IMPLAN).
- Ensure that construction expenditure estimates match the project budget and are supported by third party cost estimates or contractor bids.
- For direct investment petitions, maintain detailed payroll records and prepare organizational charts showing each qualifying employee position.
TEA Designation
- Verify that the TEA designation uses the methodology required under the Reform and Integrity Act, including updated census tract data and the correct unemployment calculation.
- For rural TEA designations, confirm that the project location meets the statutory definition and submit supporting geographic evidence.
- Include a map clearly showing the project site within the designated TEA boundaries, along with the underlying data sources used for the designation.
Business Plan Quality
- Follow the Matter of Ho framework: include a detailed description of the business, market analysis, financial projections, and organizational structure.
- Ensure financial projections are internally consistent and supported by identified, verifiable assumptions.
- Include a realistic timeline for deployment of capital, construction milestones, and job creation that aligns with the sustainment period.
At-Risk Compliance
- Review the offering documents and subscription agreement to ensure there are no guaranteed return provisions, mandatory redemption clauses, or excessive collateral arrangements.
- Confirm that the investor's capital has been fully deployed (or committed under a credible deployment schedule) and is genuinely subject to commercial risk.
- If escrow arrangements are used, ensure the escrow terms permit release of funds to the enterprise for legitimate business purposes within a reasonable timeframe.
How this data was calculated
RFE rate and topic data are derived from USCIS records obtained through Freedom of Information Act requests. Rates represent the proportion of adjudicated petitions that received at least one RFE. Topic percentages reflect the frequency of each issue category across all EB-5 RFEs in the dataset. Resolution outcomes are aggregated across multiple fiscal years. All figures are subject to revision as additional FOIA data becomes available.
Related Resources
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Disclaimer: The information on this page is provided for educational and informational purposes only and does not constitute legal advice. EB5Status is not a law firm and does not provide immigration legal services. RFE rates, topic distributions, and resolution outcomes are derived from aggregated data and may not reflect the circumstances of any individual petition. Consult a qualified immigration attorney for advice on your specific situation.