What to do when you receive an RFE: The Dos and Don’ts

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An RFE is the First Sign of Trouble

Receipt of a Request for Evidence (“RFE”) from UCSIS is the first sign that your visa or immigration case is in trouble. In most cases, an RFE signifies that you have not properly addressed the legal requirements underpinning the visa category for which you have applied. In some cases, it can mean that USCIS discovered contradictory or inconsistent information when it compared the various supporting documents you submitted as against the forms and covering letter, or as against information in the public domain. In rare cases, it can mean that the visa category you selected was not the correct visa category for your particular circumstances. In any case, receipt of an RFE requires prompt action to avoid an outright denial of your visa petition.

Understanding the Structure of an RFE

Generally, an RFE consists of 4 sections:

• Section 1 quotes from the statutes, regulations and case law relevant to the requirements underpinning the visa category you have selected;
• Section 2 summarizes your visa petition, and will include some reference to the supporting evidence that you submitted;
• Section 3 is USCIS’ explanation of how (in the view of the Reviewing Officer) you have failed to satisfy the legal requirements summarized in Section 1 of the RFE;
• Section 4 lists the specific information and documents that you must provide to satisfy USCIS that you meet the minimum legal requirements for the subject visa category.

Do not ignore or merely skim Section 1, because a clear understanding of the legal requirements is critical to properly respond to an RFE. It is likewise essential that you do not start to assemble the responsive documents until after you have a very clear understanding of USCIS’ reservations about the visa petition as it was originally constituted. This means that you should revisit your original submission, and carefully compare it to what USCIS is alleging in its RFE.

If you find that USCIS misunderstood your original submission, it may simply be that the evidence was not presented in an easy-to-understand format. In any case, once you clearly comprehend where the problem lies with your petition, you should map out your plan of action so as to strategize how you will respond to the RFE.

Responding to an RFE

You may find that some (if not all) of the information and documentation that USCIS requests in its RFE was already been submitted with your initial petition. The immediate reaction to this is usually to shoot back an angrily worded response asking USCIS to refer back to the original submission. This approach, in our view, is a mistake and likely to result in a denial. Instead, our experience has shown that it is best to expand on the originally submitted documentation, and to update the record from the point of submission, rather than quarrel with USCIS.

At the end of the day, there are two (2) ways to respond to an RFE:

• Respond with exactly what was requested; or
• Withdraw the petition.

Responding with anything other than what was requested invites a denial of the petition. On the other hand, responding with exactly what was requested will usually result in an approval of the petition. Be very careful that the additional evidence you submit is absolutely consistent with the information and documentation submitted in the original petition. If any changes have occurred since the original filing that affect your supplementary documentation (e.g., employee turnover) you must ensure that these changes are explained in your response.

If you find that you are unable to produce all of the requested documentation, or if you find that you are unable to satisfy the legal requirements of the selected category, then you have the option of withdrawing the petition without prejudice and trying again – either with a new, improved submission; or with an application in an alternate visa category. The advantage to withdrawing your petition without prejudice has the benefit of avoiding a denial on the record. However, before withdrawing your petition you should make sure that the Beneficiary will not be left without a visa status.

What to do in the event of a denial of your Petition

In the event USCIS denies your petition after it reviews your Response to RFE, this is not the end of the road. The law provides the following remedies:

• Administrative Review of Denial for Premium Processing customers;
• Motion to Reopen; and
• Appeal to either the Administrative Appeals Office of USCIS (or, in some case, to the Board of Immigration Appeals).

Given that there are strict deadlines for filing any of these remedies, and given that a thorough knowledge of the applicable law and procedure is essential to the success or failure of these remedies, it is well worth consulting with a seasoned US Immigration Appellate Lawyer before proceeding with any of them.

The Importance of Obtaining a Second Opinion

The preparer of the original visa petition is not always the best person to review and respond to an RFE. Instead, it is often recommendable to have ones visa submission reviewed independently in conjunction with the RFE, to allow for maximum objectivity in strategizing a response.

Ortega-Medina & Associates has over fifteen years experience dealing with US business visa matters. We have experienced success in many cases that were considered hopeless by other law firms. Our Senior Associate has presented cases before the EOIR, AAO, BIA and Courts of Appeal. He is frequently consulted by front-line colleagues to help resolve complex RFEs, and to prepare their requests for Administrative Review of Denials. Please contact us should you wish for us to review an RFE or to discuss a recent denial of your visa petition.