Request for Evidence

It is a sad state of affairs that we find ourselves in these days where International Migration is down, way down, from historical numbers. There are many factors that are contributing to the trend. In the United States, among many other reasons, it is down due to the fact that the reviewing body for immigration applications, the United States Citizenship and Immigration Services (“USCIS”), is pushing back on a lot of applications in ways they have not in the past. It is unclear if the reason is by design, direction, or deluge, nonetheless, the numbers don’t lie.

One tool USCIS uses to “slow down” and reject applications is the Request for Evidence (RFE). In the context of Immigration, the RFE is one of the most important tools the USCIS uses to approve or deny immigration applications. It literally is the line between success and failure, and it could mean getting your request for a visa approved or not.

An RFE is a request coming from the USCIS requesting further evidence and further information that could further explain your petition and help your case. There are a lot of people who have a lot of questions about RFEs. What does it mean to receive an RFE? What are the factors that I should try to prevent so I do not get an RFE? Is an RFE necessarily a bad thing?

In this FAQ, let us answer the top questions that people may have about the RFE and what are the things that individuals should know about this very specific part of the application process.

If you happened to have received an RFE, and you want a second opinion, do not hesitate to contact The Victoria Law Group.

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Top 10 Questions For Request for Evidence:

1. What Is A Request for Evidence?

A Request for Evidence (RFE) is basically a request coming from the United States Citizenship and Immigration Services (USCIS). It shows that they would need more information to proceed and act on your application for a VISA. Generally, individuals who received an RFE must be able to show proof evidence and submit the documentary evidence between thirty to ninety days from the receipt of the documents. The timeline is an important aspect to follow as it gives the immigration officer enough time and evidence to make a favorable decision.

You should be lucky to get an RFE and not an outright denial. There are two instances when the USCIS officers will deny your request outright, such as:

Statutory Denials. When, upon assessment made by the USCIS officer, you will be issued a denial of your request where there is no legal basis for the relief sought, or where the individual submits a request for a form of relief under a program that has been terminated. Your request may be denied outright by the USCIS officer.
Lack of Sufficient Initial Evidence Denials. When there is a lack of sufficient initial evidence denials, you should keep in mind that your request may be automatically denied by the USCIS officer. You will be issued a denial when a statute, regulation, or form instructions require a particular document to be submitted, but the document is not included at the time of filing. The policy memo notes, however, that certain instructions or regulations may allow the filing of a form before all the required initial evidence is available, and this may restrict USCIS’s authority to deny based solely on the submission of limited evidence.

You should think of an RFE as a second chance given to you by the United States immigration officer to make a case for yourself. It is simply a request for more documentation. Before the USCIS officer makes a decision, that is typically for denial, he is giving you a chance to provide the right documentation and evidence that would help sway the decision of the USCIS to grant your request for a visa or a green card.

The RFE documentation that would be asked of you depends on the category that you are applying for.

Once you receive a Request for Evidence (RFE), you should provide as much evidence and comply with all of the requirements that have been sent to you by the USCIS. If your RFE needs more than one document, you should send everything together in one response packet. If you fail to respond properly to the RFE, the USCIS immigration officer will make a decision based on the information that you provided if you fail to respond. This often means that your application for the visa or the green card will probably be denied.

2. How Do I Avoid Getting A Request for Evidence?

To avoid getting a Request for Evidence (RFE), you should make sure that you try to steer clear from the following problems:

1. When There Is A Lack of Initial Evidence, You Will Probably Get A Request for Evidence. The USCIS needs to make sure that you will provide the right evidence and the right information that could help your case. From the beginning of your submissions, you should make sure that you submit the proper documents and make sure that the documents are the original and authentic ones or ones that can be authenticated. For example, if you are applying for an H-1B visa, the government would need to properly find that you have submitted documents related to your work or any potential work. The following are the situations that you should avoid if you want to avoid a Request for Evidence:

Failing to submit initial evidence as provided in the USCIS checklist;
Failing to submit correct documents;
Failing to submit legible documents; and
Failing to submit the proper documents as needed.

2. When The Sponsoring Spouse Does Not Have Sufficient Income, You Will Probably Get A Request for Evidence. If you are applying for a marriage based green card, there is a need to show that the spouse sponsoring you is able to support you. The assumption is because you will arrive in the United States without a job, so you need someone who will have a roof over your head. You need a sponsor that is financially stable. The income of the individual must be at least 125% over the poverty line. The following are the situations that you should avoid if you want to avoid a Request for Evidence:

Failing to provide proof that your spouse has the right job contracts;
Failing to provide proof that your spouse can support you; and
Failing to provide proof that you can get supported by the spouse that is sponsoring you.

3. When you fail to show proof that your entry to the United States is legal, You Will Probably Get A Request for Evidence. If you are applying for a green card, one of the most important things that you should show is that your presence in the United States is legal. You should provide the right information providing your legal presence such as a copy of your passport or a copy of your I-94 history.

4. When there is a problem with the translation of the documents, You Will Probably Get A Request for Evidence. The USCIS needs to get proof of the authenticity of the documents that you submit, this would include a translation of the documents that you will submit. Make sure that your documentation is translated properly. You can do this by making sure that you have the legal documents properly and officially translated. Keep in mind that the most documents that you can use must show a very precise legal translation.

5. When Your Case Is Unusual, You Will Probably Get A Request for Evidence. You can also have a Request for Evidence when your case is unusual. There are a lot of very important signs that the USCIS looks at and they will tag a case as “unusual”. You should make sure that everything on your form is clear so you will not be tagged as an unusual one.

In cases of a minor applying for a green card, the following are the situations that you should avoid in order to prevent getting an RFE:

6. The record lacks the required dependency or custody, parental reunification, or best interest findings. When it comes to minors, their best interest should always be taken into consideration. If you have a minor applying for a green card under the Special Immigrant Juvenile Status, you should make sure that you submit all of the necessary documents.

Dependency documents – who will take care of the minor? Who will provide all of his needs? These documents must show proof that the sponsor can provide everything that the dependent would need for survival. The minor is not expected to support himself while in the United States.
Parental Reunification – is the minor going to the parent as a unification of their family? What are the documents that would provide that the minor is going to be reunited with his family? These are the documents that you should present.
Best Interest Findings – as discussed above, the best interest of the child should always be taken into account.

7. It is unclear if the order was made by a juvenile court or in accordance with state law. The USCIS has issued a lot of RFEs over the past couple of years because of the following instances:

The state predicate order lacks sufficient evidence to show a factual basis for the findings. The USCIS has begun issuing RFEs requesting additional factual information to support the reasonable factual basis for the state court order. The USCIS has also been issuing frequent RFEs requesting the underlying custody order issued by the juvenile court even though the SIJS findings should be sufficient. In some cases, USCIS has even requested the entire juvenile court file. It depends on how well you are able to present yourself.
The state predicate order does not highlight the state law or statute upon which the determination was based, and instead cites the Immigration and Nationality Act (INA).
The state predicate order does not show whom the court considered the parents (if not listed on the birth certificate).
The petition contains facts that conflict with information in the I-213, or “Record of Deportable-Inadmissible Alien.” If you have a derogatory record or information, you should keep in mind that it will be taken against you if you do not comply with the RFE. If an adverse decision is based on derogatory information and the individual does not know that the information is being considered, “generally the officer must advise the [individual] of this information and offer an opportunity for rebuttal before the decision is rendered.” In this case, it is better to get an RFE than not to receive any communication from the immigration officer at all.
The predicate order is invalid because the child was over eighteen-years-old when the order/findings were issued.
The petition should have been submitted along with a separate copy of state court custody order. The USCIS may rely on information from another immigration petition or application or a court order. Hence, it is important to submit documents that are related to the order or the court order itself.

8. The evidence provided does not establish a reasonable factual basis for the findings. While only a preponderance of evidence is needed when it comes to the immigration, it is important that the evidence provided is relevant to the needs of the individual and his petition. Have your evidence checked by a lawyer who can say which documents are relevant and which documents are not relevant.

9. The record contains evidence or information that directly and substantially conflicts with the evidence or information that was the basis for the court order. You should only present evidence that will allow you to present your case and get a favorable consideration from the USCIS immigration officers.

10. Additional evidence is needed to determine eligibility.

3. Can I Ignore A Request for Evidence (RFE)?

It depends. If you are no longer interested in pursuing the RFE and your petition, you could ignore the RFE and it is well within your right to ignore a Request for Evidence BUT it means that you are no longer interested in getting your visa or green card and has accepted that your case may be denied by the United States Immigration Officer.

Before ignoring a Request for Evidence coming from the United States Immigration Officer, you should know that you have three choices of responding. You may do the following:

Submit a complete response with all of the requested information at one time. Once you receive your RFE, you should keep in mind that you must read it properly and that you do not miss a thing. A The Victoria Law Group you can be sure that you are properly assisted by individuals who know what they are doing in terms of immigration.
Submit a partial response and ask for a decision on the record. If you cannot present all of the documents requested on the RFE, you should ask for a decision on the record and submit all of the documents that are being asked for you.
Withdraw the benefit request. If you are already at your wits end, you should keep in mind that it is important to withdraw the benefit request so at least you can still request again in the future. If you withdraw the I-360 altogether, and you want the option to reapply in the future, you should make a formal withdrawal of your request, it will not prevent you from filing a new benefit request at a later date. However, even if you choose to withdraw the benefit request, you should know that under 8 C.F.R. § 103.2(b)(15), there are two effects for the withdrawal: you will lose the old priority date, and you should also note that the facts and circumstances surrounding the prior benefit request shall otherwise be material to the new benefit request. In other words, your request for a green card will be kept on record. Your immigration request slate is not wiped clean and the issues that arose during the first petition may come up again in the adjudication of any subsequent petitions.

You should keep in mind that the USCIS cannot issue a default approval based on the record if the petitioner (you) fails to respond to an RFE. Hence, once you are unable to make a proper response on the RFE, you should already expect a denial of your request.

4. Does A Request for Evidence Mean That My Request Had Been Denied?

A Request for Evidence (RFE) does not mean that your request has been denied. While the RFE is simply a request for more documentation. It means that the USCIS officer reviewing your application needs more information before he or she can make a decision but, as stated above, the USCIS cannot issue a default approval based on the record if the petitioner (you) fails to respond to an RFE. Hence, once you are unable to make a proper response on the RFE, you should already expect a denial of your request.

In some cases, there are instances where the RFE is needed to just validate the documents already submitted and remove suspicion on the part of the USCIS officer. However, even with that situation being true, an RFE should never be ignored by the recipient applicant because it could mean denial of your request.

Once your request has been denied by reason of the RFE, you should expect that your records will be kept so eventually you will have to present the documents that you did not want to present in the first place.

5. What Should I Do If I Receive A Request for Evidence?

If you receive a Request for Evidence, the first thing that you should do is to check all of the inclusions on the document you received. How many pages of the request did you receive? Did you receive a checklist? There are a couple of steps that you could follow when it comes to an RFE and they are the following:

1. Read the Request for Evidence Thoroughly. The first thing that you should do is to carefully read the document that you received. Check if you have a clear understanding of what they are asking of you and understand each part thoroughly. Keep in mind that you will only get an RFE once, you should make sure that you take the chance to answer all of the remaining questions that they may have about you and what you are all about.

2. Review Your Original Application. After reading the RFE, you should make sure that you at least check if the USCIS officers did not miss anything or did not miss something that could affect your application. They are human so they may request information that is already available in your original application and they may have just missed it. If that is the case, make sure that you review your original application and that you are ready for anything that you must do. Present the relevant documents that you have already previously submitted. Refer to a page number in the annexes or prepare your answer showing evidence that they have indeed received the documents that they are asking for.

3. Prepare Your Document Response Properly. Make sure that you prepare your response properly. The best response comes with the following parts:

Your original RFE notice (NOT a photocopy) should be the first page of the response package.
You only get one response to an RFE, so if there are several documents requested you need to send them all, together, in one package.
If there are documents you’ve photocopied from your original application, you should note that they came from that original application.
Provide any necessary explanations. For example, if your birth certificate is bilingual (and one of the languages is English), but you are asked to submit a translation, you can point out that the birth certificate is already in English.

4. Explain Why You Cannot Present Certain Documents. You should explain why you cannot present certain documents. What are the documents that you cannot prepare? Why are you unable to prepare the documents? Is there alternative evidence that you may prepare that may still help you and your case? Make sure that you at least make a proper explanation on why you cannot present certain documents. In case you want your explanation to have more bearing, you may submit a Sworn Statement or an Affidavit that could confirm the circumstances why certain documents could not be found.

Once you have prepared your answer and the documents that are requested, there are a few points that you should never forget about the RFE that you received and they are the following:

Make sure that you return the documents at the imposed deadline. The deadline is very important to follow. When you mail back the documents, make sure that they will reach the intended recipient. Keep your tracker, receipt and the important documents such as the photocopies of the original document, just in case something untoward happens.
Read and review your submissions. Have a fresh set of eyes to look at the documents and your submissions. Keep in mind that while an RFE may be straightforward, you should make sure that you have all of the documents that are required of you. You may have missed a thing or two during your application and the RFE is your chance to correct that mistake.
Next, you should write a cover letter. The cover letter is an important aspect of your response to the RFE. It aims to outline the contents of your submission. Make sure that the cover letter should list the enclosed documents in the order you submitted them. It can show the USCIS officer handling your case that you provided all of the requested information.
Check all of the documents that you have submitted as the case they present may be weak. Keep in mind that even if you comply with the RFE properly, it does not guarantee that you will eventually get approved for your application. Look at the documents. Check the case that you are saying, make sure that you are making the case that is necessary.

After receiving the RFE and submitting the response to the RFE, make sure that you do the following:

Keep a copy of the RFE notice and keep copies of your responses. The USCIS will check the documents and further process them. With the movement of the documents, some parts may get lost or some untoward problems may occur so it is important that you have proof of your answer and responses.
Make sure that you submitted to the right address. It is important to also use priority mail with delivery confirmation so you can confirm that the documents have been received properly.

Due to the coronavirus pandemic, USCIS said that for the RFEs dated between March 1, 2020 to January 1, 2021, the individual will have an extra 60 calendar days to respond properly to the RFE. To check if you are entitled for the extension, make sure that you contact the USCIS to confirm your extension.

6. How Many Chances Do I Get After Receiving A Request for Evidence?

The Request for Evidence (RFE) is actually the second and last chance that you get when it comes to your application. You will not get any further extension or any other chance.

7. What Are The Attachments That I Should Send With A Request for Evidence?

The following are the best attachments that you should send with a Request for Evidence:

The RFE you received. This should be the first page of your response. You need to provide context. You are responding because you received an RFE and that is exactly what you need to present to the USCIS officers. If you are submitting an original copy, make sure that you keep a scanned softcopy as well as a photocopy of the RFE you originally received.
The documents that the RFE requested. Make sure that they are legible, in English and in a format that complies with USCIS specifications. An expert from The Victoria Law Firm will check if the documents you submitted in response to the RFE is valid.
Any further explanation or details that you feel could help to support your case. Get as much information and give as much information as you possibly can because the RFE is your one chance to get things right if they are swayed towards a rejection of your application.
An outline in the form of a cover letter. This should show a quick outline of what you have to submit.

8. How Does A Request for Evidence (RFE) differ from a Notice of Intent to Deny (NOID)?

USCIS might issue a Notice of Intent to Deny (NOID) rather than an RFE. As the name suggests, it means that the USCIS was already able to determine your application and found that you are not entitled to any of the categories that you are applying for. But, you can respond to the NOID, in the form of an appeal, so you can still send convincing evidence to show that you should be approved. Eventually, if you fail to answer the NOID or fail to provide a more convincing case, you will receive a Notice of Action denying your application. Basically, you should treat a NOID as a more urgent RFE.

9. What Happens Next After I Respond To A Request for Evidence (RFE)?

You wait for the response. Keep in mind that when the USCIS issues an RFE, all processing on the case will stop. Once the USCIS receives your RFE response, it will resume case processing. There will be further communication and you can probably expect further action on your application in a minimum of 60 days, though it could take longer depending on many factors and circumstances.

There are different factors that could affect your application processing such as the fact that the current priorities for adjudicating or deciding on the particular type of case is complex and there is a need to really process and adjudicate the case, there is also a determination on whether you submitted all the information requested, and whether, if USCIS plans to deny the case, the denial has been reviewed by a supervisor.

10. Is There An Extension For The Request for Evidence (RFE) Response Given The Current Pandemic?

An alert dated March 27, 2020 stated the following:

“In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced that it is adopting a measure to assist applicants and petitioners who are responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020.

For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.

USCIS is adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection. Please visit uscis.gov/coronavirus for latest facts and other USCIS updates.”

A later alert extended this announcement on July 1, 2020. It stated the following:

“In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020, to assist applicants and petitioners who are responding to certain:

Requests for Evidence;

Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA);
Filing date requirements for Form I-290B, Notice of Appeal or Motion; or
Motion to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
Notice/Request/Decision Issuance Date:

This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and Sept. 11, 2020, inclusive.

Response Due Date:

USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. We will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action.

We are adopting several measures to protect our workforce and community and to minimize the immigration consequences for those seeking immigration benefits during this time.

Request for Evidence