Improper RFEs and Suggestions to Respond to USCIS

Given the volume of cases the U.S. Citizenship and Immigration Services (USCIS) reviews, it should come as no surprise that the agency, from time to time, makes mistakes when issuing requests for evidence (RFEs). However, one must distinguish between an actual mistake and something that merely reflects a difference in interpretation of the requirements for a particular classification or immigration benefit. Moreover, even if an RFE contains a clear error or makes an improper request for documentation, it is important to respond with a clarification of the correct legal requirements and, when possible, proof that the particular case meets said requirements.

Background on RFEs

An RFE is issued on a pending case when the USCIS determines that additional clarification, information, or evidence is needed for the case to be approvable. The USCIS routinely issues RFEs, ranging from straightforward and simple, to immensely complex. The USCIS uses templates and stock language in the preparation of most RFEs. However, it is often clear from the language used in the RFE that the adjudicator has looked closely at the evidence, such as when the RFE lists the supporting documents provided or recites specific facts pertaining to the case.

Recent Trend of Improper RFEs

The Murthy Law Firm has seen a number of RFEs of late that request information or documentation that does not appear to be appropriate for the particular case. Such RFEs may be quite disconcerting for foreign nationals and their employers. These individuals are often stumped as to how to contend with a request for something that just does not make sense in the context of the particular case.

Must File Timely, Clear Response

Failure to respond to an RFE within the timeframe indicated in the request often results in the denial of a case. However, it is not always necessary to provide the USCIS with the exact evidence requested. Rather, if the USCIS asks for evidence that clearly does not apply to the particular case at hand, or is not appropriate under applicable law, this can be explained and argued in the RFE response.

For example, if an RFE asks for an employer’s ability to pay the offered wage in an I-140 employer petition case for a time frame that does not apply to the case, the response can explain why the time frame is inappropriate. Similarly, if an RFE asks for proof of maintenance of a prior H1B employer / employee relationship in an H1B cap case, the response can explain that there is no prior H1B relationship in this instance.

When faced with this type of RFE, the response generally should seek to refocus the matter on the correct legal standards, supported by proper references to the law, regulations, policy memoranda, and case interpretations. Any additional proof available to show that a case meets the proper requirements should also be submitted. Of course, this approach requires confident knowledge of the correct legal standards for the issue/s presented and the ability to clearly and persuasively articulate those standards.

Seek Clarification from Premium Processing Unit

For cases filed using premium processing, Murthy Law Firm attorneys, on occasion, have been able to resolve RFE errors by communicating directly with the USCIS premium-processing unit. However, this tactic should not generally be used to argue substantive issues within the case itself. Such communications are also not a substitute for filing a proper RFE response prior to the stated deadline. It is simply a potential avenue for addressing what appears to be a clear mistake.

Conclusion

USCIS officers are only human, so RFE mistakes are bound to happen from time to time. Even when a request appears to have been made in error, however, it is strongly recommended that an attorney with experience in immigration law review and assess the RFE before responding. Changes in policy and practice, as well as nuances in the law, can result in the issuance of an RFE that may appear, on its face, to have been made in error, but actually is requesting entirely relevant pieces of evidence. The Murthy Law Firm is available to assist those in need of guidance and assistance in filing appropriate RFE responses.

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