1. The Request
For Evidence (RFE) - Additional Evidence Is Required for
Your Pending I-140 Petition
When you file an Form I-140 Green
Card petition in the immigrant categories of EB1-Extraordinary Ability (EB1-EA
or EB1A), EB1-Outstanding Researcher or Professor (EB1-EA or EB1B), EB1-Multinational Executives or Managers (EB1C),
or EB2-National Interest Waiver (NIW), the USCIS examiners
may either approve your petition, or request for additional evidence if
they can not make the decision immediately.
The Request
For Evidence (RFE) does not mean that the original I-140 filing was incomplete. The RFE
really means that additional evidence
is required for your pending I-140 petition, for the USCIS officers to decide approval or
rejection of your petition. The RFE does not change the pending status of the
underlying petition of I-140.
Also, if you get a Request
For Evidence from USCIS for your I-140 petition, it does not mean that your petition
may very likely be
rejected. For each Form I-140 petition, the situation is
quite different, and it depends on the nature of the RFE notice and the the
requests listed in the RFE. In general, with a very careful and complete response to the RFE, a
lot of petitions can eventually be approved, but some petitions do get denied.
There are some cases that the USCIS has been issuing denials without
RFEs. Especially frustrating was some petitions that was summarily denied after waiting for review by USCIS for delayed time period. In other cases, same USCIS Service Center denied the NIW case, but approved EB1 "Extraordinary Ability"
petitions for these same applicants.
In the cases where RFEs are received, the specific requests for documentation
can be bordered on the bizarre.
2.
The Request For Evidence - the Burden of Proving the Beneficiary's
Eligibility
For Form I-140 Green Card
application, the burden of proving eligibility for the benefit sought
remains entirely on the petitioner, and the petitioner has to meet that
burden. When your Green Card petition has been poorly documented, you may
get a notice of unfavorable decision from the USCIS, a written statement
of the reasons for the negative outcome, and an explanation of how to
appeal.
As an alternative, the
USCIS may request for additional information or
called Request For Evidence (RFE), by sending petitioner a letter
and a list of information and documents it needs to determine the
beneficiary's eligibility. The petitioner must respond to such a request
within the specified time period, or the petition will be decided on the
basis of the already submitted documents. An RFE request from USCIS must
be in writing. It must specify the type of evidence required, and give
adequate notice and sufficient information to respond to the RFE.
The RFEs are a source of many
complaints and problems at the USCIS, second only to delays due to FBI
name checks. Some of the most common problems with RFEs include requests
for information already submitted, or requests for duplicate documents
because they are missing some information. RFE requests in such cases do
not provide an explanation of exactly what information is missing.
Also, USCIS has flexibility in
setting an appropriate length of time for petitioners to respond to RFEs.
It is difficult for the petitioner to contact the USCIS Service Center
which issued an RFE to obtain more information or clarification with
regard to the RFE. The regulation does not permit any extensions of time
to respond to the RFE.
3. Two Kind of
RFE Notices
Most RFEs contain requests for
reasonable information. These may ask for more information about journals in
which the applicant's publications have appeared, or details about fellowships,
awards, or memberships. But sometimes, a RFE may be excessive. When an RFE
of this type is received, it is important to carefully argue the required
information.
The
RFEs’ contents very significantly. Usually, there are two kind of RFEs. The first kind of RFE is called the “broad brush” RFE by immigration community, which generally asks an alien applicant to prove his or her
basic eligibility for the EB1 or NIW petition. For this kind of broad and common RFEs, it seems like that the USCIS Service Center believes that the alien applicants did not submit any noteworthy supporting materials at the initial I-140 petition submission to prove their eligibility.
USCIS had regulations and internal memos to require a supervisor’s approval for any adjudicator to issue such “broad brush” RFE. But in the practical circumstances, even this kind of RFEs violate the USCIS’ regulations, the alien applicant still needs to reply the RFE questions one-by-one, with new evidence and related supporting materials, and
with additional reference letters from experts in the field if it is necessary.
Another kind of RFE will ask the alien applicants to submit specific supplement materials, such as the citations of published papers, or comments of an applicant’s achievement from independent experts in the field. For this kind of RFEs asking for particular evidence or supporting materials, sometimes it is difficult for an applicant to provide the exact required document.
4. You Must
Submit All of the Requested Evidence
In our experience, the USCIS has raised the bar higher
for obtaining Green Card in the immigrant classification of
EB1-Extraordinary Ability, EB1-Outstanding Researcher or Outstanding Professor, EB1-Multinational Executives or Managers (EB1C),
and EB2-National Interest Waiver. However,
most RFEs and USCIS decisions remain consistent over the past few years, and stick clearly to the statute and regulations. It does appear that the
EB1 category may be moving toward a higher standard of review, paralleling similar patterns in
National Interest Waiver
in the past.
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When your petition can not be immediately
adjudicated, a request for additional evidence is generated.
During the time of about one month, you must submit all of the requested evidence, and
answer all questions in the RFE.
-
No extension of the response time is possible. Also there is no interim benefits will be
granted during the time waiting for additional evidence to be submitted. If a
response is not received within the time limit, the case will be considered
abandoned and denied, and the denial may not be appealed.
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