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What is the Request For Evidence (RFE)
for EB1-EA, EB1-OR, EB1C, and NIW Petitions

1. The Request For Evidence (RFE) - Additional Evidence Is Required for Your Pending I-140 Petition

When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.

Instead of receiving a decision on your petition from the U.S. Citizenship and Immigration Services (USCIS), you may receive a Request for Evidence (RFE). USCIS usually issues an RFE to request more information if something is not clear about your case, or you failed to include the proper supporting documentation when you filed your petition, or the agency needs updated information regarding an aspect of your case.

A Request for Evidence from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

If you receive a Request For Evidence (RFE) notice from USCIS for your Form I-140 immigrant visa application. It does not mean that the USCIS will deny your application certainly, but it only means that the USCIS adjudicator for your case needs additional information from you to make a right decision for your application.

An USCIS adjudicator can deny an immigrant visa application without even issuing a Request For Evidence (RFE) notice. Therefore, if you receive an RFE request from USCIS, it means that you have a chance to provide additional documents to USCIS to correct your deficiency and convince the adjudicator again to approve your application.

Thus, you need to make sure to reply each request in the RFE notice completely, and submit your response to USCIS before the deadline indicated in the RFE notice. If you do not respond the RFE requests or respond it after the deadline, USCIS may determine that you have abandoned your application and then deny your application.

Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.

2. The "Two-Step Approach" for EB1 Exceptional Ability, EB1 Outstanding Professor or Researcher Petition, and EB2 National Interest Waiver

The USCIS' Two-Part Evaluation approach adjudication method apply to EB1 Exceptional Ability, EB1 Outstanding Professor or Researcher Petition, and EB2 National Interest Waiver application. The evidence listed in the regulations serve only as guidelines for the petitioner. USCIS has issued a Policy Memorandum for "Two-Step Approach" Form I-140 Petitions Evaluation. This Policy Memorandum provides guidance regarding the analysis that Immigration Service Officers must use in adjudicating Form I-140, Immigrant Petition for Alien Worker, filed for: EB1 - Extraordinary Ability petitions, EB1 - Outstanding Professor or Researcher petitions, and Aliens of Exceptional Ability, including EB2 NIW petitions.

Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the alien beneficiary is extraordinary (EB-1A), outstanding (EB-1B), or excellent (NIW) in the academic field.

Simply presenting evidence which relates to criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1A, EB-1B, or NIW classification, the additional evidence may be requested with the Request For Evidence notice from USCIS.

In Part One, the USCIS adjudicator will determine whether the immigrant visa petition has submitted evidence to meet the criteria for the immigration classification he or she is seeking, as required by the USCIS regulations. The Part One is limited to determine whether the submitted evidence is comprised of regulatory criteria, by applying a preponderance of the evidence standard. In Part One analysis, USCIS adjudicators will consider the quality of the submitted evidence objectively to determine if a particular regulatory criterion has been met. USCIS adjudicators will not make a determination for the alien beneficiary’s claimed achievements.

In Part Two, the USCIS adjudicator will consider all of the submitted evidence in totality to make a determination as to whether the alien beneficiary meets the requisite level of expertise for the immigration category. In this step, the USCIS adjudicator will evaluate all the evidence and determine if it proves by a preponderance of the evidence cumulatively that the alien beneficiary satisfies the general definition of the category.

3. The RFE is Your Last Chance to Convince the USCIS Adjudicator

If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.

The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.

Although an RFE does not mean that USCIS is about to deny your case, it does mean that the USCIS is unsure about whether you meet the requirements for the immigration benefit that you are applying for. Your response to the RFE is your last chance to convince the USCIS that you meet the eligibility requirements for the particular petition you have filed. You must file your response to the RFE by the date listed on the request, or your application or petition will be denied.

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. 

4. 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. 

5. 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.

6. 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.

  • 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.

  • Evidence submitted without the RFE letter and/or proper return mailing envelope will be difficult to match up with the pending case, and may be treated as general correspondence. 

  • It is critical to appropriately and proficiently reply the USCIS issued Request For Evidence, incorrect response of the RFE will directly result in your I-140 petition rejection. 

7. The Difference between the Request for Evidence and Notice of Intent to Deny

A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives your response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer. 

If your petition is denied by USCIS, you can file a petition again, or file in other categories. The immigration law does not restrict the time you can file an immigrant visa petition again after the rejection of your previous petition. A previous rejected immigrant visa petition does not bar you from submitting another petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.

 

 


More Articles about Request For Evidence (RFE) Response Process
RFE Regulations and Issues for Request for Evidence
Typical Requests and Questions Asked in RFE Notice
How to Prepare RFE Response for EB1 Extraordinary Ability 
How to Prepare RFE Response for EB1 Outstanding Researcher 
How to Prepare RFE Response for EB1 Executive / Manager 
How to Prepare RFE Response for National Interest Waiver  
How to Prepare RFE Response for L-1A Visa or L-1B Visa 
Frequently Asked RFE Questions and Answers for EB-1A, EB-1B, NIW
Frequently Asked RFE Questions and Answers for EB-1C, L1 Visa
William's Answers for RFE Response Questions
USCIS Memorandum #1 on Requests For Evidence
USCIS Memorandum #2 on Requests For Evidence
Do-It-Yourself Packages for RFE of EB-1A, EB-1B, EB-1C, NIW, L1 Visa
Request For Evidence (RFE) for Green Card and Visa Application
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