by Joseph Whalen

An interesting question came up in the July 26, 2012, EB-5 call with USCIS. Someone, I didn't catch the name, asked about dropping the problematic or insufficient portions (industry cluster/NAICS codes) from an I-924 in order to get quicker approval of the rest. The simple answer is: "Yes, you can drop the duds and keep the stuff that is good-to-go". In response to an RFE, you can choose to respond selectively and work with what USCIS has identified in that RFE. If an adequate response to one or more portions/aspects is too time consuming or costly you can cut it out and just stick with what is already OK and/or respond selectively in order to gain an additional industry or two etc. It would behoove the applicant to clearly state in the RFE response which industry (NAICS code) is no longer sought at that time.

I have written about this issue previously but obviously not everybody saw it. USCIS pointed out the appropriate general regulation on RFE responses and it is laid out below.

8 CFR § 103.2 Submission and adjudication of benefit requests.

(b) Evidence and processing.

(11) Responding to a request for evidence or notice of intent to deny. In response to a request for evidence or a notice of intent to deny, and within the period afforded for a response, the applicant or petitioner may: submit a complete response containing all requested information at any time within the period afforded; submit a partial response and ask for a decision based on the record; or withdraw the benefit request. All requested materials must be submitted together at one time, along with the original USCIS request for evidence or notice of intent to deny. Submission of only some of the requested evidence will be considered a request for a decision on the record.

(12) Effect where evidence submitted in response to a request does not establish eligibility at the time of filing. A benefit request shall be denied where evidence submitted in response to a request for evidence does not establish filing eligibility at the time the benefit request was filed. A benefit request shall be denied where any benefit request upon which it was based was filed subsequently.

8 CFR § 103.2(b)(11) is the regulation that guides you in being specific about what you want to drop or keep while (b)(12) should be read as a warning. USCIS will not make you business decisions for you. USCIS will not selectively approve a portion of the request without the applicant's specific request to do so. It this sense § 103.2(b)(12) is an "all or nothing" situation.

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.