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H-1B

RFE 101: A Guide to the Basics of the Request for Evidence

An RFE, or “Request for Evidence”, is a formal written request for more information and documentation that is sent out by USCIS if they believe that they don’t yet have enough evidence to approve or deny a given application. A RFE does not mean that your application has or will be denied or even that it is more likely to be denied than if you hadn’t gotten the RFE. It mostly just means that more evidence is needed to eventually make a final determination on your application. That stated, however, receiving an RFE can be a scary event that may leave the recipient wondering about what comes next in the process. This article primarily deals with the general concepts of the RFE, what it looks like, how to respond to an RFE, and ways to best avoid receiving one in the future if you wish to file for an application for a new visa.

What is an RFE?

                As previously stated, an RFE is a written request made by USCIS to request more information and/or documentation pertaining to your application. It does not mean that your application has been denied but rather that one more step is needed to be completed before a decision may be rendered. This is different than receiving a NOID, or “Notice of Intent to Deny”, which indicates that USCIS is anticipating denying your application unless you are able to sway their decision otherwise.

An RFE is made up of five constituent parts: (1) the facts of your case; (2) the applicable law under which they are requesting the documentation; (2) the list of evidence you have previously submitted to USCIS with your initial application; (3) a list of evidence that they believe you are missing; and (4) a deadline for your response to the request accompanied by an explanation of the consequences of your failure to do so. Generally, it is always a good idea to double check the list of evidence submitted against the list of evidence that is missing as often it may just be a matter of USCIS simply overlooking a document that you have already submitted to them. However, if after checking the list and you are still missing a requested document, it is paramount that you respond with the requested documentation by the deadline. If you do not respond by the deadline, USCIS will either conclude that you have abandoned your application and send you a denial or go ahead and decide your case without the additional information requested. So, it is extremely important to comply with the deadline as provided.

It should also be mentioned that, in the requested evidence portion, USCIS will often detail alternative documents that you may be able to submit in the event that you do not have a particular document on hand. Thus, if you are missing documentation, there is no need to panic; there is a way to fix it. It is, however, suggested, that you obtain the services of an experienced immigration attorney to ensure that any alternatives documents that you plan to submit are in compliance with USCIS requirements and practices.

Reasons for Receiving an RFE

 An RFE may be received for a number of reasons and not all of them are immediately apparent due to the variety of visas that an RFE is often sent out for. The reasons that an individual may receive an RFE will vary greatly depending on whether they are making the application on business immigration or family immigration grounds but some overlap does exist. This article primarily deals with RFEs issued on business immigration grounds. Some of the more common reasons USCIS may issue an RFE are as follows:

  • Missing Evidence
  • Missing proof of legal entry
  • Missing translation of documents
  • Inability to determine specialty occupation
  • Inability to determine how a foreign national’s skills pertain to the requesting business
  • Lack of degree in specified field
  • Missing proof of experience
  • Inability to prove employer-employee relationship
  • Issues with the LCA
  • Inability to prove availability of work
  • Inability to show maintenance of status
  • Unpaid fees
  • Missing medical examination and vaccination record
  • Explanation of criminal history

This list is not comprehensive but does contain a good deal of issues that may spark USCIS issuing an RFE in the event that you are applying for a visa on business immigration grounds. Family immigration RFEs have similar reasons for which an RFE may be issued but also have some specific issues that would best be discussed with an experience family law attorney.

It is also important to mention that it is also entirely possible to receive an RFE simply because your case is out of the ordinary and will require some additional documentation and evidence to actually understand what is going on. However, no matter the reason you’ve received an RFE, how you respond to it remains the most important factor in whether your case will be successful.

How to Respond to an RFE

When responding to an RFE, your first step should always be to carefully read the entire request first to ensure that you are responding with the proper evidence and documentation requested.  Typically, you will only have one shot to reply to any and all remaining questions from USCIS as an RFE will usually only be issued once so it is paramount that you know exactly what they are asking for.

Next, it would be wise to review your original submissions and ensure, as noted early, that USCIS simply didn’t overlook one of your submitted documents. If you find that is the case, you can simply photocopy the original document and include it with your RFE response alongside of a note stating that they came from the original documentation.

Once you have double checked what has been requested, the next step is compiling the requested documents into a submission package and submitting them. When putting together your response package to the RFE, there are some important things to keep in mind:

  • Your ORIGINAL copy of the RFE should be the first page of your response. Do not include a photocopy of this document in its place. You should, however, make a copy for your own records to keep
  • Everything requested must be sent all together in ONE package so double check you have gathered everything that they have asked for on their requested documentation list
  • If you cannot provide a requested document, simply not providing it will not likely lead to a denial of application on its own. But you’ll need to explain why you cannot provide the requested document and provide acceptable secondary evidence or documents if possible
  • If you are unable to provide documentation or if something would be better understood if given context, provide explanations. The explanations will help USCIS to better understand the documents you have submitted, especially if they are photocopies of the original submissions
  • It is advised that you include a cover letter in which you list clearly all the documents you are submitting. This is not a requirement, but it will ultimately help USCIS to avoid missing any documents provided
  • Double check your deadline as it may be stated as either a date or a number of days. If it’s stated as a number of days, you should start counting from the date that appears on the first page of the RFE (the date that the RFE was issued). The deadline is not calculated from the day that you receive the RFE. This is extremely important to remember so that you do not miss your deadline. Additionally, USCIS does not go by the mailbox rule, and thus, must RECEIVE your application by the deadline
  • Once everything is compiled, you should make a photocopy of your entire submission to keep for your records.

How to Avoid an RFE

While RFEs may be triggered for any number of reasons, we have a few general tips that may help you avoid receiving one in the future.

  • Make sure to carefully review all the required documents for the application and submit them as any missing documents may trigger the RFE
  • It is usually proper to err on the side of caution and submit more evidence that supports your case than not enough
  • If any document you are submitting is in any language other than English, you will need to submit a translation of that document. The translation must be an official translation from a reputable source
  • Avoid inconsistencies and omissions of information. If there are any inconsistencies, explain them thoroughly so as to avoid any issues. Furthermore, it is better to be upfront about an issue rather than attempt to hide it and have USCIS find out about it later.
  • Spend time organizing your package to USCIS in order to make it easier on them to find and identify your submitted evidence. The people working at USCIS are human and doing a little extra work on your end will go a long way in helping you have a smooth experience.

RFEs can be a scary, and tricky, hurdle for those that receive them. Thus, we believe that it is important to speak to a qualified business immigration attorney to assist you in the preparation and submission of your paperwork to help reduce the chance of a denial and top give yourself the best fighting chance possible. This article covers the general basics of the RFE and are in no way a replacement for qualified advice. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Avery Krushall