EB-5 Denial: Common Reasons for RFEs and NOIDs and How to Respond

An EB-5 denial is a situation every Vietnamese investor worries about after transferring hundreds of thousands of dollars and waiting months for the review process. In practice, most cases are not denied outright — USCIS usually issues a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) first, giving the investor a chance to submit further documentation before a final decision is made.

For profiles Visa EB-5, receiving an RFE or a NOID does not always mean the case has a serious problem. Many RFEs are simply the USCIS adjudicator asking for clarification, or for documentation that was not originally in the file. A NOID, however, is a more serious signal — an intent to deny has already formed, and a strong, fast response is needed.

This article examines the difference between RFEs and NOIDs in detail, the most common reasons an EB-5 case is denied or asked for further evidence, the process for handling each stage, and points specific to Vietnamese investors — including a warning about “visa agents” in Vietnam who fabricate documents, a pattern USCIS has recorded during 2026.

Distinguishing RFE from NOID

These are two types of notice that differ in severity and response time.

Request for Evidence (RFE)

An RFE is a request for further evidence when the adjudicator at United States Citizenship and Immigration Services (USCIS) needs certain aspects of the case clarified. An RFE is the standard method USCIS uses to address gaps in information without denying the case outright.

Characteristics of an RFE:
– Standard response time: 87 to 90 days
– Some cases are shorter (30 days) or longer (120 days) depending on the content
– USCIS rarely grants an extension to an RFE deadline
– The adjudicator lists in detail the documents or information required
– Receiving an RFE does NOT mean the case will be denied — most RFEs are answered successfully

Notice of Intent to Deny (NOID)

A NOID is a more serious signal — the adjudicator has already formed an intent to deny the case and is giving the investor a final opportunity to rebut it. A NOID sets out the specific grounds on which USCIS intends to deny, based on the evidence currently in the file.

Characteristics of a NOID:
– Response time: 33 days or less (considerably shorter than an RFE)
– USCIS has already formed a negative view — strong evidence is needed to change it
– A NOID is rarely the first response — it usually follows an RFE response that did not satisfy the adjudicator
– In some cases a NOID is issued directly when the case has a clear problem from the outset

Comparing the two:

Criteria	RFE	NOID
Severity	Low to moderate	High
Response time	87-90 days	33 days
Frequency	Common	Less common
USCIS’s intent	Needs more evidence	Intends to deny
Probability of a successful response	High with good preparation	Much lower

If the RFE response fails to convince the adjudicator, USCIS may go on to issue a NOID. If the NOID response is still unsatisfactory, USCIS denies the case — the investor must then file a new I-526E or appeal.

The Most Common Reason — Source of Funds (SOF)

According to data from professional EB-5 immigration lawyers, the leading reason for an EB-5 case being denied or receiving an RFE/NOID is proving the source of funds (SOF).

USCIS requires the investor to trace the flow of funds from a lawful origin to the EB-5 project’s escrow account continuously, with no gaps. Any unusual transfer that is not explained can trigger an RFE.

Common SOF Problems

Inadequate documentation: insufficient documentation proving income, business activity, or the original asset. Vietnamese investors often struggle here because Vietnam’s tax system and accounting records are not as formal as in the United States.

Gaps in the flow of funds: transfers between internal accounts with no clear note of purpose, or transfers through a relative’s account with no gift letter.

Undocumented currency conversion: Vietnamese investors often have to convert VND to USD through several intermediate steps — each step needs full documentation.

Inheritance or gifts without complete paperwork: inheritances from a previous generation often lack a contract, a will, or a notarised death certificate, making them hard to trace.

A mismatch between tax filings and the investment amount: an investor reports a modest personal income for tax purposes but invests US$800,000 — the adjudicator will ask for an explanation.

A Special Warning — Vietnam, 2026

A serious warning recorded by many EB-5 lawyers during 2026: a number of Vietnamese banks and “visa agents” are promoting services that transfer funds directly from Vietnam for EB-5 investment. Some of these services fabricate SOF documents — including fake bank statements, non-existent business contracts, and dishonest tax information — to legitimise funds of unclear origin or funds that lack genuine documentation.

The consequences of using such services are severe:
– USCIS is familiar with the pattern of these fabricated documents and detects them quickly
– The case receives a NOID or a direct denial once USCIS spots an inconsistency
– The investor is flagged for “fraud” — affecting every future US visa application
– The investor can be permanently barred from re-entering the United States under INA § 212(a)(6)(C) — fraud or willful misrepresentation

Our absolute recommendation: work only with an immigration lawyer licensed to practise in the United States and an EB-5 advisory firm with a clear track record. Every SOF document must be the investor’s genuine paperwork, never “polished” by an intermediary.

A Common Reason — At-Risk Capital

The second requirement USCIS scrutinises closely: the investor must show that the invested capital is “at risk” — genuinely exposed to loss alongside the potential for gain.

The At-Risk Concept

USCIS defines at-risk capital as capital that:
– Has been transferred into the account of the New Commercial Enterprise (NCE)
– Can be lost if the business fails
– Carries no unconditional commitment to be returned
– Has no guarantee structure or puts/calls that assure the capital’s return

Common At-Risk Problems

Redemption guarantee structures: some earlier EB-5 projects included a clause guaranteeing capital would be returned at a specific date — USCIS rejects such structures.

Capital held in escrow too long: USCIS requires capital to be deployed into genuine business activity — it cannot sit in escrow without being exposed to business risk.

Promissory notes with preferential repayment terms: some projects use a promissory note with a fixed repayment schedule — this does not meet the at-risk requirement.

Improper bridge loan structures: some Regional Centers use a bridge loan to fund a project before EB-5 funds arrive — full documentation is needed showing that EB-5 funds replaced the bridge loan and are exposed to business risk.

A Common Reason — Project Deficiencies

These are problems belonging to the Regional Center or the project, not to the individual investor. Even so, the investor’s I-526E case is directly affected.

Job Creation methodology

The core EB-5 requirement is creating 10 full-time jobs per investor. Common problems include:

• The economic model uses unreasonable assumptions
• Indirect and induced jobs calculated using a non-standard methodology
• Construction jobs beyond 24 months must be counted separately — not every project handles this correctly
• The tenant-occupancy methodology is rejected if it cannot be substantiated
• The job-creation schedule does not match the capital-deployment schedule

Business plan deficiencies

An EB-5 business plan must meet the Matter of Ho criteria — a legal decision of the Administrative Appeals Office. Common problems include:

• Market analysis that is not thorough enough on competitors and demand
• Financial projections that are unreasonable or unsupported
• A marketing strategy lacking detail
• A hiring timeline that is not specific and does not match capital deployment
• Permits and licences not yet obtained or not yet submitted
• Incomplete senior/bridge loan documentation

Material changes

After the I-526E is approved but before the investor files I-829, if there is a “material change” in the project, the case can be affected:

• The Regional Center is terminated by USCIS
• The project changes significantly from the original business plan
• The capital structure changes
• The job-creation method changes
• The project location changes

Material changes can put an already-approved I-526E case at risk at the I-829 stage.

A Common Reason — Investor Eligibility

Some RFEs/NOIDs relate to the investor’s own personal eligibility:

A problematic immigration history: a past overstay, a prior visa-terms violation, a previous visa denial, or an entry ban.

Criminal record: a previous conviction or arrest — this must be fully disclosed and explained.

Dependent issues: the spouse and children have their own issues (immigration history, criminal record, health).

Health issues: certain conditions can cause inadmissibility under INA § 212(a)(1) — a medical examination should be completed and addressed before filing.

Currency export controls compliance: Vietnam regulates outbound transfers of funds — investors must hold the appropriate licence from the State Bank of Vietnam when remitting EB-5 investment funds. A case missing this licence can receive an RFE.

The RFE/NOID Response Process

On receiving an RFE or a NOID, the investor should take the following steps immediately:

Step 1 — Read Carefully and Identify the Deadline

Read the entire USCIS notice and note the response deadline (an RFE is usually 87-90 days, a NOID 33 days). Calendar the deadline with a 1-2 week buffer before the cut-off to allow time for review and submission.

Step 2 — Notify the Lawyer and the Regional Center

Send the notice to the representing immigration lawyer and the Regional Center/developer within 24-48 hours. For issues belonging to the project, the Regional Center is responsible for supplying further documentation. For SOF issues, the investor must supply it directly.

Step 3 — Analyse the Notice

Clearly identify each issue USCIS has raised:
– An issue with the investor’s SOF
– An issue with at-risk capital
– An issue with the project (job creation, business plan)
– An issue with investor eligibility

Each group of issues needs its own response strategy.

Step 4 — Gather Further Evidence

Gather new documents or supplement existing ones:
– More detailed bank statements
– Vietnamese tax returns and related tax documents
– Business contracts, bills, invoices
– Valuation reports for assets
– Certified English translations for all foreign documents

Step 5 — Prepare the Cover Letter Narrative

The cover letter must lead the adjudicator clearly through the full logic of the case:
– Summarise each issue USCIS raised
– Respond to each specific issue with supporting evidence
– Reference specific pages/exhibits
– Cite the relevant legal provisions

Step 6 — Submit Before the Deadline

USCIS does not accept late submissions. Submit through the online portal or trackable express mail. Keep proof of delivery.

Step 7 — Track the Case Status

After submitting, track the case status on myUSCIS. USCIS usually processes an RFE response within 60-180 days, a NOID response faster.

Preventing RFEs and NOIDs from the Filing Stage

Prevention is better than cure — preparing the EB-5 case carefully from the outset is the best way to avoid an RFE/NOID:

Source of funds: prepare a detailed SOF report with a narrative tracing every flow of funds, supported by documentary exhibits. For a Vietnamese case, take time to gather 5-7 years of tax returns, business accounting records, and asset-sale contracts (if any).

Choose a quality EB-5 project: the criteria for choosing a safe EB-5 project this includes a Regional Center with a strong approval track record, a project with a complete business plan, reasonable financial projections, full permits, and a sound job-creation methodology.

Proper translation: every Vietnamese document must carry a certified English translation, with the translator’s certification attached.

Currency export compliance: ensure an outbound-transfer licence is obtained from a Vietnamese bank, and keep full documentation.

Avoid fraudulent visa agents: work only with an immigration lawyer licensed in the United States. Never use a service that “polishes” documents — the consequences are permanent.

Complete the case before filing: USCIS is not very forgiving of an incomplete case — better to wait an extra 3 months to complete it than to file early and receive an RFE 6 months later.

When an EB-5 Case Is Denied — the Options

If the RFE/NOID response still fails to satisfy USCIS and the case is denied, the investor has several options:

Option 1 — Motion to Reopen/Reconsider

File Form I-290B within 30 days of the denial. This suits cases where:
– New evidence exists that USCIS has not considered
– USCIS misapplied the relevant law
– USCIS made an error in its fact-finding

The Motion’s chance of success depends on whether there is significant new evidence.

Option 2 — Appeal to the AAO

Some denials can be appealed to the Administrative Appeals Office (AAO). The process takes 6-12 months and the outcome is uncertain. The AAO has the authority to re-decide the case but usually only overturns a decision where there is a clear legal error.

Option 3 — Federal Court Review

Some denials can be challenged in federal court. This is a complex, costly option that applies only in special circumstances.

Option 4 — File a New I-526E

After a denial, the investor can file a new I-526E with improved evidence or with a different EB-5 project. However, the past denial must be disclosed and explained — the new adjudicator will scrutinise the case more closely.

Option 5 — Mandamus Lawsuit

If an I-526E has been pending too long (usually over 1-2 years) with no decision, the investor can file a mandamus lawsuit compelling USCIS to decide. This option has been becoming more common during 2026.

Special notes for Vietnamese investors

An EB-5 denial carries some specific considerations for Vietnamese investors:

Vietnam’s tax system differs from the United States’: Vietnamese business accounting records often fall short of what USCIS expects. Time should be spent preparing an explanation of this difference — a Vietnamese accountant or auditor can sign off to confirm it.

Currency export compliance: The State Bank of Vietnam regulates outbound transfers of funds for personal investment purposes. The investor must hold the appropriate licence — its absence breaches Vietnamese law and triggers an RFE from USCIS.

A warning about visa agents: some “all-in-one” services in Vietnam may include fabricating documents. Investors should stay alert and work only with firms that openly name their representing US lawyer and have a clear US track record.

Inheritance from a previous generation: many investors’ funds come from inherited family assets. Inheritance documentation in Vietnam is often incomplete by USCIS standards — additional preparation is needed, including the will, death certificate, asset-division agreement, and inheritance tax.

Multi-generational assets: Vietnamese investors often hold assets accumulated over several generations with a low cost basis. Selling them to raise EB-5 capital produces a large capital gain — the original accumulation and the transfer process both need to be clearly explained.

Summary

An EB-5 denial is not a common outcome — most issues are resolved through an RFE, and a smaller number through a NOID. Even so, the financial consequences of an actual denial are severe: an investor may have transferred US$800,000 into the project and spent years waiting without receiving the United States permanent resident card.

The three leading causes of RFEs/NOIDs are Source of Funds documentation, at-risk capital, and project deficiencies. For Vietnamese investors, SOF issues account for the largest share — partly because Vietnam’s financial/tax system differs from the United States’, and partly because some intermediary services in Vietnam fabricate documents in a pattern USCIS is now used to detecting.

PLI’s immigration team recommends that EB-5 investors put time and resources into preparing a thorough case from the outset — SOF documentation above all. Working directly with an immigration lawyer licensed to practise in the United States, avoiding non-transparent “all-in-one” intermediaries, and accepting a delay of a few months to complete the case properly are the best ways to reduce the risk of an RFE/NOID. If a notice has already been received, responding fast and fully within the deadline is essential — there is no second chance once the deadline is missed.