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Avoiding & Addressing RFEs

Make the petition easy for the USCIS officer to approve

Always tell a story that the USCIS Adjudicator will understand and enjoy. Whether your client is an artist or a scientist, in the business of transport logistics or providing pharmaceutical services, chances are high that the adjudicator will be unfamiliar with the individual beneficiary’s achievements, or the nuts and bolts of a given industry. Engaging the adjudicator in a manner that makes the petition interesting and understandable may help lead them towards a more favorable adjudication. This may seem obvious, but if the USCIS adjudicator does not understand the beneficiary’s work or the needs of an employer, an RFE may be on its way.

Consider using the employer’s support letter or other testimonial evidence to frame the narrative, and don’t bury the lead. Adjudicators have a quota to fill, and may not dig for the really important points. Make sure that in both the support letters and the attorney cover letter that the most important points are up front and obvious. While adjudicator’s often push back on testimonial evidence, the AAO precedent decision, Matter of Skirball, 25 I&N Dec. 799 (AAO 2012), makes it clear that where the RFE does not question the credentials of the experts, take issue with their knowledge, or otherwise find reason to doubt the veracity of their testimony, it has no basis to reject the reliability and relevance of testimony to the specific facts in issue.

Moreover, to the extent possible – document, document, document! Adjudicators review the petition that is in front of them. They may not check website links, and they cannot readily access previous related filings (maybe one day, but not yet). You want them to be able to have everything they need to make a favorable adjudication, and you want to highlight the relevant parts. Notwithstanding the importance to document, drowning a petition in documentation is not the best strategy as it makes it a much harder chore for the USCIS adjudicator. For example, if you are including a 500 page financial statement, you may want to consider only including the first page of the report and any relevant page – highlighting the specific sections that are most pertinent.

Packaging is everything

The formal presentation of a response to an RFE, while not surpassing in importance the content of such a response, is an important factor in determining the outcome of a petition or application for an immigration benefit. The following recommendations are offered with respect to such presentation: (1) always include a copy of the RFE on top of the RFE response packet. The USCIS’ directions require that this be done, and it may help ensure that the RFE response catches the eye of the relevant adjudicator immediately. At the very least, it will remind the adjudicator immediately of the concerns that he or she wished to see addressed. (2) follow the ordering of subject headings included in the RFE, and address each issue raised by the USCIS in the order they were presented in the RFE. Replicate the subject headings of the RFE (preferably in the same font and type size) and provide your response to the issue raised by the USCIS directly below. In other words, treat the RFE as if it were a set of interrogatories. This will show the adjudicating officer that his or her concerns are being squarely addressed and will facilitate the approval of the petition or application. (4) if your RFE response includes any exhibits or other evidence, order and present these as they would be in a petition or application. The use of numbered page tabs is recommended. In this latter regard, you should not hesitate to include in the response to the RFE a document or other piece of evidence that was previously submitted in the petition or application that is the subject of the RFE.

Bad filings make bad law and worse RFEs

As seems to be particularly true these days with L-1B adjudications, RFEs and decisions often cite standards that are not found in the law or in the regulations. Do your homework. Don’t rely on what USCIS says the law says. It seems self-evident, but sometimes we forget – don’t rely on your memory, re-read the law and regulations. Then, read the AILA Liaison Reports and Message Center and consult with colleagues and mentors to learn current USCIS RFE trends. If you know your case is one that is likely to fall short if subjected to an inappropriate, but popularly applied, legal standard, lawyer up and lay out the correct law and the legal standards in your submission. Provide the legal reasons, element by element, why your case should be approved either in your cover letter or in a support letter from your client. In tough cases, include a detailed index of documents, organized and sub-tilted by the element for which the evidence is offered to prove. Make it easy for the officer to see why your case meets the legal standards and not get distracted by RFE template language.

If an RFE nevertheless ensues, and the legal standards cited are incorrect, say so. By all means, if your facts allow, respond to the RFE with evidence to show your case meets the (incorrect) standard stated in the RFE, but politely and clearly point out that the legal standard applied is incorrect, and again lay out how your case meets the correct legal standard. This response gives the adjudicator two potential reasons to approve your case and also helps to set up your case for appeal should a denial nevertheless result. And, the more often lawyers respond to the incorrect standards and application of the law without protesting, the more the application of such standards will be reinforced.

Make Google your friend

Whether your case is a family case or a business case, you want to be aware of any facts (or misinformation) the USCIS can discover. If your client exists, there is probably information about him/her/it on the internet. Check it. You may discover some of what is out there is in error. For example, when someone moves residences, to for example, live with their spouse, online white pages may or not be updated. Sometimes people neglect Facebook accounts or personal websites when they enter serious relationships or start a new career and as a result those internet resources have outdated and/or incorrect information. Business too are not immune from failing to update websites. These types of information landmines can be easily fixed before filing an application with USCIS, but may be difficult to explain if discovered by USCIS before you.

While it is important to have trust with your clients, it is also important to know that not everyone is truthful with their attorneys all the time. Conducting internet research to verify your clients’ story may also save you from a sticky situation later.

Prepare your client

Client reactions to the issuance of an RFE will vary from the indifferent to the hysterical; typically, the extremity of the reaction will be inversely proportional to the experience of the client with the applicable immigration process. However familiar or unfamiliar a client may be with such a process, however, it is important that his or her expectations with respect to this process be adequately managed and that he or she be fully educated on the implications of receiving an RFE. In this regard, we encourage you to take the following steps:

(1) Make your client aware of the existence of RFEs and make sure he or she understands what an RFE is. Many clients believe that there are only two outcomes of the filing of a petition or application for an immigration benefit: approval or denial, and will be surprised when the RFE makes its appearance. Tell your client before filing the petition or application that issuance of an RFE is possible, however remote this may seem, and that there is no guarantee against such issuance. Explain that the RFE is not a precursor to a denial, but is simply a request by the Services for more information on a given point or points. Communicate to the client that there can be many reasons for the issuance of an RFE, ranging from serious deficiencies in the petition or application to an adjudicator’s need (particularly in a Premium Processing context) to buy more time to process the petition or application. Finally, make it clear to the client that responding to the RFE will require more work on your part, and that you expect to be paid for this work. Some clients consider that dealing with an RFE is a matter of an attorney cleaning up a mess that he or she has created, and that the attorney should be responsible for all costs involved in this. Leave the client in doubt that this is a view of which you do not partake.

(2) Be honest with the client, but do not allow the importance of receiving an RFE to be exaggerated. Receiving an RFE is not a positive development; it will, at the very least, delay the receipt of the benefit sought and create an additional expense, and the client should be informed of this. At the same time, maintain your client’s morale by stressing that this is a temporary setback and that you are confident that a well-prepared response to the RFE will be successful. As noted above, convince the client that issuance of the RFE does not signal the Services’ intention to deny the application or benefit or that such issuance means (as clients reportedly sometimes suggest) that you have fallen at the first hurdle. Explain to the client that the adjudicator simply has some doubts about the approvability of the application or petition and is giving you a chance to dispel these doubts. In this respect, impress upon your client that USCIS adjudicators are not infallible and that the concerns raised in the RFE may be the result of an inadequate understanding of the legal norms governing eligibility for the benefit sought. In other words, the client should understand that it is possible for the USCIS to make a mistake.

(3) Share the RFE with the client. Reasonable attorneys may differ on this point, but providing a copy of the RFE to the client establishes that your duty to keep the client informed has been satisfied and many clients in any case receive copies of such RFEs directly from the USCIS. In addition, the client may, on reviewing the RFE, have useful input that you would not otherwise receive. If you have time, meet or speak with the client to go over the content of the RFE. This will give you an opportunity to address any inflammatory commentary or editorializing the USCIS may have chosen to insert. RFEs often include language (including casual references to fraud and misrepresentation) that appears to be calculated to increase the level of anxiety of the entity or person seeking the immigration benefit, and, possibly, to undermine the level of confidence in the legal counsel’s capabilities.

(4) Explain to the client your strategy for dealing with the RFE and give the client a candid appraisal of your estimate of the chances of success. Spell out in detail to the client your plan of attack and the strengths and weaknesses of this plan.

(5) Establish a clear back-up plan to be implemented if the response to the RFE is unsuccessful. Discuss the possibility of filing a motion to reopen/reconsider, as well as an appeal to the Administrative Appeals Office. If the denial of the petition or application means that your client will have no status in the United States, the need to leave the country promptly should be frankly discussed.

Be ready for an RFE

Advise your client about what an RFE is, and what you think the likelihood of receiving one is. Discuss the potential weaknesses in the case and the pros and cons of addressing those upfront in the original submission. Sometimes to draw too much attention to a potential weakness in a case can become a self-fulfilling prophecy. Have that discussion with your client and get the client involved in deciding on a strategy for avoiding an RFE and how to respond should one nevertheless be issued. Ask your client what documents might be available in the event of an RFE and then decide whether to submit them in advance or wait until an RFE might be issued. Ask your client whether documents that might not be easily available upfront (e.g. a closely held company’s tax return when the owner is reluctant to release that to anyone) might be more available in the event of an RFE (when the company owner can be more easily persuaded of the importance of turning over the tax return).

Some experienced practitioners recommend always holding back some evidence in weak cases in order to be sure to have something to send in response to an RFE. The authors of this article disagree and feel a better strategy is to file the best case possible upfront. However, whether to intentionally hold back relevant evidence is a decision which should be made with the client, so the client is invested in the decision and the outcome.

In the event of an RFE, don’t feel you can respond only with new evidence. If you feel some of the evidence previously submitted was overlooked or misunderstood, it very well might have been. There is no harm in including relevant evidence previously submitted with a more detailed explanation of how that evidence shows your case meets the legal standard in an RFE response. (When you do resubmit previously submitted evidence, best practice is to acknowledge that the document was previously submitted and politely explain why it is being resubmitted.)

Mind the standard of proof

The USCIS has clearly established in a June 3, 2013, Policy Memorandum the standard of proof that officers should apply in adjudicating a petition or application for an immigration benefit. See USCIS Policy Memorandum, Requests for Evidence and Notices of Intent to Deny, File No. PM-602-0085 (June 3, 2013), available at AILA Infonet Doc. No. 13061247 (posted 6/12/13).

Per this memorandum, the applicable standard of proof is a preponderance of the evidence. In the USCIS own words “[u]nder that standard, the individual must prove it is more likely than not that each of the required elements has been met.” Using an analogous metric, the petitioner or applicant need only establish a 51% probability of success. It is appropriate to remind USCIS adjudicators of this standard of proof, and some practitioners make it a practice to cite the preponderance of the evidence standard at the outset of very RFE response. If the RFE contains language such as “petitioner has not clearly established…” or “it has not convincingly been demonstrated that…” practitioners should remind the USCIS that such standards of proof exceed what is required under the USCIS’ own standards and are thus inappropriate. Appending to the RFE response a copy of the June 3, 2013 memorandum as a further reminder would be appropriate.

Teachable Moments

Who among us has not received an RFE that seems to have made something up? Or even worse, is completely boilerplate and contains no information regarding how or why your 200 page submission is deficient. And then there are those that are actually not even about the petition you filed – something somewhere got mixed up. What are the options?

First and foremost, you MUST respond. Whether you seek AILA liaison assistance, Congressional assistance, or some other form of intervention, do not let the deadline pass without responding.

If the RFE contained a mis-statement of fact or law, think of it as an opportunity to ‘teach’ the adjudicator. For example, RFEs for EB-1A petitions will often state that the criteria for honors and awards and memberships in societies that require outstanding achievement are stated in the plural, and therefore, you cannot meet this criterion with only one award or one membership. However, this is contrary to the Adjudicator’s Field Manual (AFM) and to previous statements by Service Center Operations (SCOPS). This is your opportunity to educate the adjudicator, by including excerpts from the AFM and SCOPS-AILA liaison minutes. Another example are RFEs for exceptional hardship waivers which state that the “exceptional hardship must be to your USC spouse and child” whereas the INA standard is clearly “spouse or child”. Including and highlighting the law may help set the adjudicator on the right path.

In addition to the RFEs that mis-state the law, there are also those RFEs that simply recite the law – (not always correctly so be sure to double check language) – without explaining how or why the material you provided failed to satisfy the law. The ‘boilerplate’ RFE. Again, this may be an opportunity to remind the adjudicator that pursuant to the USCIS Interoffice Memorandum “Requests for Evidence (RFE) and Notices of Intent to Deny” (February 16, 2005), “it is not normally appropriate to ‘dump’ the entire RFE template in a RFE; instead, the record must be examined for what is missing and a limited, specific RFE should be sent.” Adjudicators are also instructed to “set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required.” This requirement was echoed in the subsequent USCIS Interoffice Memorandum “Removal of the Standardized Request for Evidence Processing Timeframe Final Rule, 8 CFR 103.2(b)” (June 1, 2007), which noted that “an adjudicator should not ‘fish’ for evidence” and that “if an RFE is needed, the adjudicator must 1) determine what evidence is lacking and 2) request that evidence.”

Believe it or not, SCOPS really does want to know when the RFEs are incorrect or simply boilerplate, so that it can be corrected. In fact, the email address scopsrfe@dhs.gov is for that very purpose. RFEs submitted to this email will be reviewed, BUT it does not guarantee that any action will be taken on your case. Following submission of an RFE to scopsrfe@dhs.gov, you will receive an automated response that includes the following:

Erroneous RFEs

We welcome you to send RFEs that you feel are erroneous.  Please note:

• You will not receive a reply to your email.
• E-mailing RFEs to this address does not replace the requirement to respond to the RFE within the period stated on the RFE Notice.  You should respond to the RFE in a manner you feel is appropriate.  Failure to respond could result in a denial. (emphasis added)
• If you have specific questions regarding individual cases, please contact the National Customer Service Center (NCSC) at 1-800-375-5283, or 1-800-767-1833 (TDD for the hearing impaired).

Get the most from your Premium Processing dollars

The benefit to filing a case Premium Processing isn’t only faster response time. It’s also about access. The Premium Processing Units at all four Service Centers have separate phone lines. And, you can call them if you receive an RFE and feel there has been an error. An officer will normally review the file and get back to you. While full revocation of an RFE is unlikely, if the RFE did obviously overreach, you may receive a revised, shorter more easily responded to, RFE.

AILA Wants to Know!

If you are submitting an RFE to scopsRFE@dhs.gov consider copying reports@aila.org (or even if you are not submitting it to SCOPS). While AILA may not be able to directly intervene, it can use the RFE with other examples to identify trends and approach SCOPS regarding its concerns. This way it cannot be dismissed as a ‘one off’ issue – which is less likely to catch SCOPS attention. AILA can also brief the issue and explain to SCOPS precisely why the RFE is problematic. However, AILA cannot do this without your input, so remember, reports@aila.org.