What is a Request for Evidence from USCIS?
In today’s post, I’m going to explain a little about a common source of frustration for applicants, attorneys, and believe it or not, even USCIS officers: Requests for Evidence.
First, let’s talk a little about what a Request for Evidence (RFE) is exactly. An RFE is issued by a USCIS officer when a piece of evidence is missing that an officer needs to make an adjudicative decision. There are hundreds of reasons why an RFE may be sent USCIS, but to give an example, let’s say an applicant submitted a Form I-485 and included their birth certificate in their original language, Spanish. USCIS requires all non-english language documents submitted to include a certified English translation. So an officer or contractor will issue an RFE to the applicant for them to send in that certified translation so the adjudication can continue.
That leads us to the next topic here, which is who sends out the RFE and when do they do it. Any USCIS officer and some specially trained USCIS contractors can send RFEs, and the RFE can be sent at any stage in the application process. Some USCIS offices, such as the National Benefits Center, utilize contractors to supplement the agency workforce. These contractors are limited in what they can and can’t do (e.g. they can’t make any discretionary decisions such as approval and denials). However, they can issue RFEs if after their initial review, they don’t find a piece of evidence on their checklist the agency provides for them to use.
Officers can issue RFEs at different stages during the application process as well. If an I-485, for example, is sent to an officer at the NBC during the initial pre-processing all cases go through, that officer may send out an initial request for evidence. If the case proceeds on and gets sent to a field office for final adjudication, it’s possible an officer at that office can also send an RFE as well. This would be considered an additional request for evidence.
These two different types of RFEs bear an important difference; the timeframe an applicant is given to respond. Generally, the agency allows for 87 days from the date of the RFE for an applicant to send their response to an INITIAL RFE. However, an ADDITIONAL RFE usually comes with a much shorter timeframe for a response (often 33 days). Regulations generally prohibit an extension of time, though officers do have some discretion in limited circumstances. Because of this, it’s important for applicant to closely read and understand not only the contents of what is requested in the RFE, but also the timeframe for a response.
And why do some applicants and attorneys think the RFE is asking for evidence they already submitted at the time of filing? This is usually the result of one of two things. First, if the application was submitted as a paper filing through a USCIS lockbox, it’s entirely possible a document was lost or even mislabeled when scanned for officer review. Of course, it could be there an the officer or contractor reviewing the file may just miss it. This can happen unfortunately, especially dealing with filings that have hundreds of pages with them. The second possibility, however, is far more common than some applicants and attorneys realize. What the RFE is asking for and the applicant/attorney claims was submitted, doesn’t meet what the officer feels is a legally sufficient threshold. A common example I saw in my time at the NBC was needing to send an RFE for a tax return transcript. Often, an applicant and/or attorney would respond it was included in the filing and send it along with the RFE response. However, they would send a wage and earning transcript page, a common error USCIS sees. So having a discerning eye and keen understanding of what the agency is asking for can make all the difference in some cases.
So now I get to speak a little about what I put in my introductory sentence: why are USCIS officers frustrated with RFEs? For the vast majority of RFEs, officers are limited to a pre-approved and populated list of templates to cover the most common scenarios they are likely to encounter. Depending on the office, the officers generally are not allowed to change these pre-approved scripts without supervisor approval. Or, if the officer is working certain writing intensive forms such as I-140 Eb1A petitions, they might need supervisor approval and several drafts before even sending the RFE. So, an officer might wish to clarify or alter something in their RFE to better help the applicant understand, but it would mean additional delay and work the officer would not receive credit for. A lot of officers just simply cut and paste the pre-approved templates and move on. And to be clear, that’s what they’re being asked to do!
Another frustration involves getting a new RFE template approved. Again, this is office specific, but getting new language inserted or edited in RFE templates can be burdensome and time-consuming. For example, at the NBC where I was a supervisor, we had to do the following: 1) proposed language is sent to one or subject matter experts (SME) for their feedback and edits. 2) Next, the draft is sent to the leadership chain involved (sometimes 2 or 3 levels) for their comments. 3) The new draft is then forwarded to Office of Chief Counsel (OCC) attorneys for their review and passing along to their own SMEs. 4) Finally, once all language is approved, it is then submitted to specific SMEs for the RFE system called ECHO (Enterprise Correspondence Handling Online) to be formatted and uploaded. Even a simple one or two sentence edit can take weeks to be approved and finalized.
If you receive an RFE and would like an former USCIS officer and supervisor to help you understand what the agency is asking for, please feel free to reach out to me for a consultation.
