Recent Trends in RFE's and NOID's
To say that immigration has grown even more controversial over the past few months is an understatement. Recent trends in EB5 RFE’s and NOID’s may represent a hardening of the government’s attitude towards immigration generally, and, based on my experience, probably a small shift at the policy level that percolates down through individual adjudicators. As a practical matter, here’s what I see:
Taxes taxes taxes. USCIS has been asking for proof that taxes on all kinds of transactions have been paid, and if not, asking for proof that they did not need to be paid. Has interest collected on a family loan been declared? Has interest forgiven been declared as a gift? Has a dividend or profit distribution been declared? USCIS seems to be equating tax avoidance with unlawfulness;
“Going on record without proof…” This phrase has been part of the USCIS canned language for a long time, but it’s more and more popular and repeated ad nauseam in RFE’s and NOID’s. It seems to be a slant towards requiring documentary as opposed to simple anecdotal proof of facts;
But where did HE get the money? USCIS typically applies lesser scrutiny of the source of funds the further away from the petitioner’s primary investment transactions the source is. That is changing. Now, it’s not just from where did dad get the money. USCIS wants to know about grand-dad, too. The inquiry gets pushed further and further back, almost to a point of guaranteed insufficiency of proof;
A higher rate of Source of Funds questions in RFE’s and NOID’s when the project issues aren’t resolved. I feel that in the past, SOF vs. project issues were considered more independently than they are now. Nowadays, if the project is bad, USCIS will find some SOF defect, no matter how strong your preliminary SOF report. A project USCIS started looking at just recently has an astounding 100% SOF RFE rate. That’s a new development.
We are seeing new attitudes and immigration policy being applied critically against I-526’s that were filed 2-3 years ago, when the industry was guided by quite a different set of adjudicatory standards. I have been spending a lot of time saving I-526’s that I had nothing to do with at the outset. While lawyers could once brag about having unblemished records, let’s remember that, once upon a time, a brainless monkey could have a 100% success rate. More and more, it takes a mandamus to even get an RFE.
Recent events have borne out the wisdom of those clients that paid me 2 years ago to submit solid and comprehensive SOF reports. I think future events will prove my current approach towards RFE’s and NOID’s to also be warranted. That is: I answer every RFE, and every NOID, as if it is the preliminary step in the litigation that the petitioner hopes to avoid. Avoid litigation by preparing for it.
