Request for Evidence (RFE) Best Practices

After you’ve submitted Form I-485 (Application to Register Permanent Residence or Adjust Status) with all the required supporting evidence, you must wait for a decision from U.S. Citizenship and Immigration Service (USCIS). This time of waiting can be full of anxiety, worry, and stress about whether you’ve filled out everything correctly and most importantly, what the final decision will be.

But sometimes, if USCIS deems that the evidence submitted is not sufficient or if some evidence is missing from your file altogether, or if your application has been sitting unadjudicated for a period of time due to visa retrogression, USCIS may issue a Request for Evidence (RFE). This can be a stressful event and you may wonder if this means that your petition is at risk.

The receipt of an RFE does not mean that your petition is likely at risk. Therefore, it is imperative to work with a skilled Columbus immigration attorney to make sure you answer the RFE with all the evidence requested to maximize your chances of helping USCIS reach a favorable decision.

What is an RFE?

A Request for Evidence is a way for USCIS to let a petitioner know that the evidence initially submitted along with the I-485 application is insufficient, is missing, or simply needs to be updated. The RFE will contain a list of the missing documents as well as reasons why some documents are not sufficient. The RFE will also contain instructions for responding as well as the deadline by which your request must be received by USCIS.

The RFE will come as Form I-797 which USCIS uses to communicate with applicants and beneficiaries. This is not a form you fill out but is simply a way for the agency to notify you of missing or insufficient information.

Reasons for RFE

Here are some of the main reasons why USCIS issues an RFE when reviewing I-485 petitions:

• USCIS needs evidence of continuous employment authorization in the U.S. from the time the I-485 was filed until the RFE was issued.
• An original and current employment verification letter is needed from the sponsoring employer.
  • In cases where the I-140 is ported to a new employer, the employment verification will need to be provided by that new employer.
• Request for an updated Form I-693, Report of Medical Examination and Vaccination Record.
• USCIS would like to confirm that you are still working for the same employer.
• There are possibly some concerns with the birth certificate documents you may have submitted.
• USCIS needs to confirm that you did not have any immigration infractions during your stay in the U.S.
• USCIS may want to confirm that a criminal infraction, if any, did not create an excludable or deportable event.
• USCIS may simply want an update about your family and residence history.

Of course, there may be other reasons why you’ve received the RFE, but these are the main ones you may encounter. Either way, it is best to seek the help of a knowledgeable attorney when dealing with these or any other reasons that trigger an RFE to be sent to you.

Let’s look at some of the most common reasons in a bit more detail.

Report of Medical Examination

Form I-693 must be valid at the time the USCIS adjudicates, or makes a decision about, your I-485 petition. There are several requirements for the form to be valid, this includes:

1. Form I-693 must be signed by the civil surgeon no more than 60 days before the filing of the I-485 petition, and
2. USCIS must have made their decision no more than two years after the civil surgeon signed the form.

Also, even if the form meets these requirements, if a USCIS officer believes the beneficiary’s medical condition has changed, they may require the filing of a new Form I-693.

Lastly, a medical exam form that is due to expire before USCIS believes they’ll be able to adjudicate the I-485 petition, or before a green card become available, will also cause USCIS to issue an RFE for a new medical exam. This is a preventive measure to ensure that Form I-693 will be valid by the time your petition is adjudicated.

Proof of Employment Authorization

USCIS is also interested in making sure the beneficiary of the I-485 petition has not worked without authorization since the I-485 was filed up until the RFE was issued.

If proof of employment is requested, it may be satisfied by providing copies of your employment Authorization Document (EAD) or other documents proving your continued authorized employment in the U.S. Even if unauthorized employment has occurred, there are provisions under the law for forgiveness in certain circumstances.

Employment Verification Letter (EVL)

If such a letter is requested, it must be submitted by the petitioning employer or by the new employer, if the I-140 was ported. The letter should be the original document, on company letterhead, signed by your petitioner or the HR representative for the company petitioning on your behalf.

The letter must include the following details: your employment start date, your current employment status (full time, part time, etc.), your official title or position, and annual salary or hourly wage.

If the letter is being provided by the new employer after the I-140 has been ported, the letter must also explicitly confirm that the new position is “the same, or similar” to the original position in the approved I-140.

How To Respond to an RFE

It is important to pay attention to all the details of the RFE and diligently prepare every piece of evidence requested. Here are some best practices when responding to the RFE:

• Make a copy of the RFE for your records since you’ll need to return the original RFE with your response.
• Double-check the deadline by which you need to respond and contact an immigration attorney as soon as possible if you think you’ll need help. This gives the lawyer you are working with as much time as possible to help you compile and submit the requested evidence.
• Include a cover letter in which you list clearly all the documents you are submitting. This is not a requirement, but it helps USCIS to quickly see the evidence being submitted and helps to avoid a document being overlooked. After all, even at USCIS, there is room for human error when dealing with so much paper documentation.
• Compile all the documents requested and submit them.

What If You Cannot Provide a Requested Document?

The RFE will list all the documents which USCIS already has in your file. This may not match all the documents you submitted, again, because paper documents can be overlooked and lost in the shuffle.

Also, the RFE will list all the documents which still need to be submitted, as well as any alternative documents if you cannot provide the requested originals.

If you cannot provide a requested document, simply not providing it will not likely lead to a denial of the I-485 petition. But you’ll need to explain why you cannot provide the requested document and provide acceptable secondary evidence or documents. You will need the assistance of experienced immigration attorney to assure that the secondary evidence submitted meet USCIS guidelines or prior pattern of approval.

Response Time for RFE Extended

On March 24, 2021, USCIS announced that it will be extending its flexibilities around responses to several requests, including RFEs. Therefore, if your RFE was issued between March 1, 2020, and June 30, 2021, USCIS will consider a response to the RFE received within 60 days after the response due date contained in the RFE. In other words, you have 60 extra days to respond to the RFE beyond the response date printed in the request.

This extension is in response to the COVID-19 pandemic and the hardships it has imposed on individuals, making timely responses to requests from USCIS difficult. Notwithstanding this extension, it is vital to gather all the requested evidence to the best of your ability and submit it as soon as possible, without delay.

Working with an experienced immigration attorney who is used to responding to RFEs is a great way to get some peace of mind that you’ve done everything correctly. You only get one chance to respond to the RFE, make sure you get it right.

Ignoring the RFE is never a good idea, because failure to respond will led USCIS to make a decision based on the insufficient evidence they have, which usually ends up being a denial of the I-485 petition.

Tips to Avoid an RFE

Here are some things to keep in mind when first making the I-485 petition filing in order to avoid receiving an RFD down the road:

• Make sure to carefully review all the required documents for the I-485 petition and submit them, missing documents from your filing will likely trigger an RFD.
• Provide more evidence that supports your case, not less. There’s no harm in filing the I-485 petition with a lot of supporting documentation.
• If the documents you are providing are in a language other than English, you’ll need to provide a certified English translation of that documents. The documents must be translated officially, not by you or a family member.
• Seek the help of an immigration attorney experienced in filing I-485 petitions to avoid any mistakes and get it right the first time.

RFE v. NOID

While a Request for Evidence (RFE) is not a cause for panic, the receipt of a Notice of Intent to Deny (NOID) is a more serious matter. It is a document which provides reasons why the USCIS officer believes your petition should be denied. You’ll have less time to respond to this notice, usually 30 days. Also, you’ll need to provide significantly stronger evidence to overcome the reasons stated in the NOID. Still, it is possible to overcome a NOID, advisably with the assistance of a skilled immigration lawyer by your side.

Sam Shihab & Associates Can Help

If you are an immigrant with any questions or concerns regarding your immigration case, H-1B visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issues you face and defend you if you’re accused of violating immigration law.

Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.

We have offices in Dublin and Columbus, Ohio, Michigan, and Texas. But our full suite of immigration law services is available to clients nationwide and even around the world.

Contact us today!