All About RFEs

by Matthew Bray

You’ve given your attorney all the requested documents. All forms have been signed, T’s crossed and I’s dotted. And off goes your application or petition to US Citizenship & Immigration Services (USCIS). Now all you have to do is wait for an approval notice in the mail, right? But you receive a letter that requests “additional evidence.” The dreaded RFE (Request for Evidence). What does it mean? How do you respond? Why did this happen?

Don’t fall off your chair, but I think, sometimes, RFEs can be a good thing. They are, at best, an opportunity to clarify a point or to educate an officer. At worst, they demonstrate a severe misunderstanding of the case, but in responding you have a chance to re-explain and present the case. So what to do...

First, don’t panic! I’m a natural worrywart, so I give this advice with some experience. The fact is, an RFE does not mean USCIS is denying a case or that the foreign national beneficiary/applicant doesn’t qualify for the benefit. Nor does it mean the applicant is being deported! It is important to take into consideration what an RFE actually is, and what it is not.

A Request for Evidence is an indication that the officer adjudicating the case thinks they are unable to adjudicate the case based on the submitted evidence or is requesting a clarification. The RFE may request a document that was not available at the time the case was filed but the applicant could not wait to file. In this situation, an RFE is entirely appropriate and in fact is the critical opportunity to supplement the application with the necessary documentation; however, in many cases  officers “thinking” they are unable to adjudicate a case based on the evidence already submitted does not mean they are necessarily correct.

Immigration officers carry incredible workloads and have to make important and potentially life-changing decisions all the time. And that means they sometimes make mistakes. Applicants may get an RFE requesting a document that was already provided with the original submission. It may be sufficient to point out that fact to USCIS, resulting sometimes in USCIS taking back the RFE and quickly approving the case. Or perhaps the officer has misunderstood a part of the petition, in which case, the foreign national can attempt to present the case in a different manner. Sometimes, officers issue RFEs if they believe that the requested evidence will eliminate any doubt as to the beneficiary’s eligibility for the benefit requested. This does not mean that the RFE was properly issued.

In fact, so commonly were RFEs issued for evidence that may eliminate doubt about eligibility, that over the years USCIS headquarters has had to issue special guidance reminding officers that the burden of proof in immigration cases is not the same as the burden of proof in criminal cases; that is to say, an applicant need not prove eligibility for a benefit “beyond a reasonable doubt.” Still, officers do occasionally need to be reminded of that, and a response to an RFE is very often a good opportunity to raise this as a “training issue” with supervisors. Indeed, like lawyers, immigration officers can benefit from ongoing education and training, and it is very often through RFEs and the responses to them that such training issues come to the surface and can be addressed.

Other times, an RFE is not so much a request for evidence as it is for a request for “explanation.” The fact is, immigration law is complicated, and there are many ambiguities in the laws and regulations that leave themselves open to interpretation. In those situations, it is actually beneficial for officers to request that an applicant (represented by a competent attorney, we hope) explain in more detail how they are eligible for the benefit request, or, perhaps, why they are not ineligible for it. This allows an attorney to more closely identify the officer’s concerns, and the RFE response provides an optimal vehicle for that attorney to zealously advocate for a client.

Some RFEs are quite specific, providing applicants with a discrete set of specific documents that can be used to address the RFE's concerns. Rather than a sign that a petition or application will be denied, RFEs in those cases actually provide a roadmap to approval. In situations where an applicant may not have all the documents requested, the RFE provides an opportunity for more zealous advocacy and creative lawyering—identifying and providing documents that may address USCIS’s concerns even if not specifically requested in the RFE.

In terms of formulating a response, I think the best is one that educates and persuades an officer of the position backed by reference to the law and regulations. It should not be hostile or combative, even if attorneys, employers, and foreign nationals believe the RFE is entirely without merit. If the RFE misstates facts, the response should clearly but politely point out the misstatement and clarify the misunderstanding. While grounded in the law and regulations, an RFE response, however, should not contain too much legalese. It should be readable and easily comprehensible for the officer. To that end, if the officer lists specific questions, the RFE response should respond to those questions in the order they were asked. Lastly the response to the RFE should clearly identify any new materials being included and explain why they were not included in the initial application.

The truth is, an RFE is a regular part of immigration law practice, and does not mean that the case will be denied. At their best, RFEs provide guidance to applicants and attorneys as to the specific concerns of USCIS with regard to the case at the time it is being adjudicated. While some RFEs are unfortunately improperly issued, they offer an opportunity to raise the issues behind the RFE to a higher level and improve adjudications overall. RFEs also allow attorneys to advocate for their client and help develop the best submission possible with the goal of ultimately obtaining approval of the case. So if foreign nationals receive an RFE, don’t panic! Take a deep breath and dive right in.