- Posted on: Nov 11 2019
By Sasha Lazerow
Lazerow is the lead immigration paralegal based out of our Tysons, VA office.
When filing nonimmigrant or immigrant petitions, it is critical that US immigration practitioners go above and beyond in proving the criteria laid out by USCIS, to avoid Request for Evidence (RFE) letters. RFEs can be issued for a variety of factors, depending on the visa or green card category.
When a case lands on the desk of USCIS, officers adjudicate cases based on USCIS policy manuals. These policy manuals contain charts and checklists which guide the officer to determine the status of the cases – approved, more information needed or denied. In cases where more information is needed, an RFE is issued. For those who haven’t seen an RFE, they can look scary. They tend to be lengthy and contain lots of immigration jargon. The RFE will state facts in the case, qualifying criteria and the sufficiency of the evidence that was provided, along with an explanation of why and what new evidence needs to be submitted. Most importantly, the RFE will clearly state the deadline. One must never submit after the deadline,rather submitting as soon as possible, once all evidence is gathered, is key.
“Under 8 CFR 103.2, if all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the basis for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. A request for evidence will indicate the deadline for response, but will not exceed twelve weeks” (USCIS).
Within the field of Immigration today, a receipt of an RFE letter is becoming more customary than not. In recent years, immigration firms, organizations, and institutes have been tracking RFE rates. Trends reveal an increased issuance of these RFE letters for nonimmigrant employment-based visas, such as H-1B and L-1visas. As detailed by ENVOY, H1B Specialty Occupation visas have seen a surge in issuance of RFEs over the past 3 years. In FY 2019, USCIS issued that 40% of H1Bs filed an RFE. This is quite striking and serious, as this is a visa intended to bring over professionals in specialty occupation positions with advanced degrees. Often these RFEs are issued to those clients who already hold an H1B, meaning they have proven that they met the criteria for an H1B visa in the past.
The increased issuance of H1B RFEs over the past 3 years may be interpreted by some as indications of additional restrictions in awarding this visa. Others may feel the RFE is a demand to prove that the individual and the Petitioner meet company and industry standards: the minimum of a bachelor’s degree, years of experience in the field, support from both colleagues and those in the industry, as well as unique professional qualifications. However, data reveals that once a petition receives an RFE and a response is submitted, there is a 65.4% chance of being adjudicated an approval.