RFE (How to Respond)
If you are in the process of making an application, and have already filed your petition, you may receive a Request for Further Evidence (RFE) from USCIS.
The following guide looks at what an RFE means for your application and how to respond to this type of request. There are also some handy tips on how to deal with an RFE when being asked to provide additional documentation for your application.
What an RFE means
RFE refers to a request from US Citizenship and Immigration Services (USCIS) for additional evidence from applicants who have made an immigration application, such as a change of status or a green card. Put simply, the adjudicating officer believes they require more information from the applicant in order to make a decision.
The request can come from USCIS at any stage prior to a determination being made on your application.
An RFE will come in the form of a written request or notice for more information and documentation in circumstances where USCIS have formed the view that they do not yet have sufficient evidence to determine your eligibility for the immigration benefit sought.
RFEs inevitably signal a delay in the adjudication process. As such, it is always advisable to take advice on your initial application to avoid an RFE scenario.
What you will find in an RFE
Typically, an RFE will contain an introductory paragraph describing the nature of your application, the date it was received and an initial explanation that USCIS does not have sufficient evidence to either approve or deny your application.
The RFE should contain the following information:
(1) identify the eligibility requirement(s) that has not been established and why the evidence submitted was not sufficient;
(2) identify any missing evidence specifically required by the applicable statute, regulation or form instruction;
(3) identify examples of other evidence that may be submitted to establish eligibility, and;
(4) request that evidence.
Finally, the RFE will set out where to send any additional evidence, the deadline within which to do so and the consequences of any failure to submit this additional documentation, either on time, or at all.
How to respond to an RFE
If you receive a request for evidence from USCIS, this does not necessarily mean that a denial of your application is inevitable, rather that additional information is required to enable the case officer to properly process your application.
Having received an RFE, your visa application or green card petition will be treated as pending during the RFE request and response review time.
Assuming USCIS receives the information requested within the allocated timeframe, your case officer will then proceed to make a determination on your application based on all the evidence available.
In the event, however, that you fail to respond within the allocated time, or at all, you run the risk that USCIS will form the view that you have abandoned your application and issue a denial accordingly.
Further, if you fail to provide all of the information requested, in the format required, USCIS may proceed to make a decision based on the evidence submitted to date, which again is unlikely to be favourable.
Once the RFE response has been received, USCIS can take up to 60 days to make a decision on your case.
In certain cases, the evidence provided in response to an RFE may raise eligibility questions that the USCIS case officer did not identify during their initial case review. The new evidence may also open up new lines of inquiry. In such a case, a follow-up RFE might be warranted.
Responding to an RFE
If you receive an RFE you must endeavour to meet the request both in full and on time.
Provide each and every document listed on the RFE. In the event that this proves to be impossible, you should provide a clear written explanation by way of cover letter for any missing documents. Where you have been unable to provide an original document, you should again explain why the original is unobtainable and provide certified copies where at all possible.
Do not miss the deadline set out in the RFE. The response deadline will be expressed as either a set number of days or by way of a specific date. In the event that the deadline is expressed in days, this will run from the date of the RFE letter or notice, and not from the date that you received the RFE in the post.
The maximum response time that will be permitted by USCIS for an RFE is 12 weeks, although this can vary on a case-by-case basis. It is always best to send your RFE response via priority mail with delivery confirmation so that you have proof that you complied with the deadline.
Statutory denials without prior issuance of an RFE
In the case of an application or petition that lacks initial evidence, USCIS has the power to make a determination without issuing an RFE under enhanced discretionary powers granted by the Trump administration.
As such, applicants who receive a request for evidence should regard this as an invaluable opportunity to persuade USCIS that their application should be approved.
An application in which the issuance of a denial may be appropriate without prior issuance of an RFE is where the regulations require the submission of an official document establishing eligibility at the time of filing.
This could be, for example, a family-based category where an affidavit is needed to show that the applicant has adequate financial means.
USCIS will issue what’s known as a statutory denial without prior issuance of an RFE on any application or petition that does not have any basis upon which the applicant or petitioner may be approved.
This would include any filing in which the applicant or petitioner has no legal basis for the benefit sought, or a request for a program that has been terminated. Other examples include, but are not limited to:
- Waiver applications that require a showing of extreme hardship to a qualifying relative but the applicant is claiming extreme hardship to someone else and there is no evidence of any qualifying relative;
- Family-based visa petitions filed for family members under categories that are not provided by statute based on the claimed family relationship.
Dealing with a Notice of Intent to Deny (NOID)
Instead of issuing an RFE, USCIS might issue you a Notice of Intent to Deny (NOID). A Notice of Intent to Deny (NOID) is a notice issued by USCIS based on evidence of ineligibility or on derogatory information known to USCIS, but the applicant or petitioner is either unaware of the information or may be unaware of its impact on eligibility.
When an adverse decision is based on derogatory information that is unknown to the applicant or petitioner, generally speaking an opportunity to rebut that information shall be given by USCIS.
When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial, the adjudicator must issue a written NOID to the applicant or petitioner, providing up to a maximum of 30 days to respond to the NOID.
This article does not constitute direct legal advice and is for informational purposes only.