After submitting an E-2 Treaty Investor application, the waiting period can feel uncertain as the case moves through review at U.S. Citizenship and Immigration Services (USCIS). During this time, the process does not always follow a straight path. USCIS may pause adjudication and issue a Request for Evidence (RFE) or, in some cases, a Notice of Intent to Deny (NOID).
These notices shift the process from passive waiting to active response. USCIS is signaling that certain parts of the filing require closer review under the E-2 rules. The investor is asked to provide more information or address specific concerns before USCIS continues toward a final decision.
For E-2 investors, these moments are critical. How the original application was prepared, documented, and organized directly shapes whether the review moves forward smoothly or requires further clarification.
RFE and NOID explained
When USCIS needs more information to complete its review of an E-2 Treaty Investor application, it may issue an RFE. An RFE identifies specific documents or details that USCIS considers necessary to determine whether the application meets the requirements set out in the regulations. The case remains under review while the investor gathers and submits the requested evidence within the timeframe stated in the notice.
In other situations, USCIS may issue an NOID. An NOID explains that, based on the evidence currently in the record, USCIS believes the application does not satisfy the E-2 requirements. The notice outlines the reasons for this assessment and provides an opportunity for the investor to respond with evidence or explanation before USCIS makes a final decision.
Both RFEs and NOIDs are part of how USCIS evaluates whether an application clearly demonstrates eligibility under the E-2 classification. They focus on the sufficiency and clarity of the evidence submitted, rather than on the filing itself.
Practical ways to reduce the likelihood of an RFE or NOID in an E-2 case
USCIS reviews each E-2 Treaty Investor application based on the evidence submitted and the requirements set out in the regulations. While no application can be guaranteed a specific outcome, preparing a filing that clearly documents each required element helps USCIS complete its review without needing further clarification.
RFEs and NOIDs often arise when required elements are not clearly supported by the evidence in the record. Preparing the application with the regulatory requirements in mind helps present a complete and organized case for review.
Clearly document the investment and source of funds
USCIS reviews the application as a complete record. Information provided in forms, business plans, financial records, and supporting exhibits should align and clearly support the facts described in the filing.
Applications should also be properly completed and supported by all required initial evidence. This includes ensuring that required forms are signed, supporting documents are included as required, and any foreign-language documents are accompanied by English translations. Evidence submitted should directly relate to the claims made in the application and be organized in a way that allows USCIS to understand how each document supports eligibility.
Show that the business is a real and operating enterprise
The E-2 classification is limited to active commercial enterprises. Evidence should demonstrate that the business is operating or is ready to begin operations. This may include leases, licenses, contracts, payroll records, or other documents showing day-to-day business activity. Submitting evidence that clearly reflects ongoing or imminent operations helps USCIS assess this requirement during review.
Address the marginality requirement with supporting evidence
USCIS evaluates whether the enterprise has the present or future capacity to generate more than minimal income for the investor and family. Financial projections should be realistic and supported by business documentation, such as operational plans or market analysis. The projections should align with the size, industry, and stage of the business described in the application.
Define the investor’s role in the business
E-2 regulations require that the investor will develop and direct the enterprise. The application should clearly describe the investor’s role, authority, and responsibilities within the company. Organizational charts, job descriptions, and ownership documents should be consistent and show how the investor exercises control or oversight of the business.
Maintain consistency across all documents
USCIS reviews the application as a complete record. Information provided in forms, business plans, financial records, and supporting exhibits should align. Inconsistencies can slow review and lead USCIS to request clarification. Careful organization and cross-checking of documents help present a clear and cohesive case.
Conclusion
RFEs and NOIDs arise when U.S. Citizenship and Immigration Services needs more information to assess whether an E-2 application meets the regulatory requirements. By focusing on clear documentation, consistency, and alignment with those requirements at the time of filing, E-2 investors can reduce gaps in the record that lead to further requests during review.
Sources:
- USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors
- Electronic Code of Federal Regulations (eCFR). https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.2
- Electronic Code of Federal Regulations (eCFR). https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-103/subpart-A/section-103.2
- USCIS. https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-6
- USCIS. https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-2
- USCIS. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-RFEs%26NOIDs.pdf
- U.S. Department of State. https://fam.state.gov/FAM/09FAM/09FAM040209.html