How to Respond to a USCIS Request for Evidence- Best Practices for RFE Responses

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1

Become very familiar with 8 C.F.R. ? 103.2 in its entirety.

8 C.F.R. ? 103.2(b)(8) covers Requests for Evidence and Notices of Intent to Deny. Cases may be denied without an RFE, which is discretionary when there is a lack of initial evidence. Amount of time USCIS gives for response is discretionary but in no case will exceed 12 weeks for an RFE or 30 days for a NOID. The regulation says that additional time may not be granted.

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Distinguish between the simple and complex RFE.

Example of a simple RFE: Provide complete medical exam; submit original birth certificate; submit proof of 245(i) eligibility, such as physical presence on 12/20/2000 or that a labor certification application or petition was filed prior to May 1, 2001. Examples of complex: H-1B that questions the beneficiary's credentials, the specialty occupation, the employer-employee relationships (recently common for IT consultant companies). L-1A that questions whether the position is executive or managerial, L-1B that questions whether the position involves specialized knowledge. Sometimes the RFE may appear to be simple but actually suggests a complex dynamic: example: Step-child petition where USCIS requests information about bona fides of marriage or the biological parent's immigration status. Response may require both documentation and an explanation of the law on step-parent/step-child eligibility independent of spouse's immigration status.

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Use common sense best practices to create a complete and focused response

oDocket the response deadline and set reminders oImmediately forward the RFE to the client and ask for input for the response oCreate a timeline for tasks, i.e. dates by which the employer's response is in, evidence is provided, the response is drafted, and the response packet sent. oRead the RFE several times slowly and break it down, topic by topic, paragraph by paragraph, and sentence by sentence to understand what issues are raised and decide how to organize and write the response. oFor simple RFE responses, refer in your transmittal letter to the specific request(s) in the RFE and provide a checklist of documents or information you are providing. Index and tab any attachments to the response, such as an affidavit, employer letter, and documents. oFor complex and/or multi-page RFE's, read the RFE several times slowly and break it down, topic by topic, paragraph by paragraph, and sentence by sentence to understand what issues are raised and how to write the response.

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Gather documents, research the applicable legal principles and organize the response.

oOrganize the complex RFE response by using the structure of, and repeating the words used in the RFE itself. If you stray from the structure or words provided in the RFE, the response may be incomplete or could confuse the adjudicator. Try to break the response up into section headings by following the topics. oGather requested evidence oBe prepared to research and utilize authority as may be appropriate. A response to a request for general information that refers to the statute and regulations in a meaningful way can be very persuasive. On the other hand, citing law without explaining its relevance can undermine the presentation. oIf the RFE requests documents or information already provided, point that out in a respectful way. Avoid unnecessary displays of annoyance or sarcasm. Consider resubmitting the evidence with the RFE response as a convenience to the adjudicator.

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Make sure you have all the information you need, finalize the response and follow up to ensure timely delivery to USCIS

oTake note of 8 C.F.R. ? 103.2.16(i)-(iv) regarding mandatory disclosure of derogatory information. Ask for additional information from USCIS and inform it of your willingness to respond to any additional concerns. oProofread, edit and revise the response, making certain you have covered all questions, requests and objections. oFile the response timely. Use an express mail service and try to send it at least 2 days before the deadline. You can have a FedEx online account that lets you print out the airbill and track the delivery online. oCheck the delivery service's online tracking . oCheck the USCIS's online case status to see that it reflects the RFE response was received and case processing has resumed.

Additional Resources

Title 8 Code of Federal Regulations Section 103.2(b)(8).

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