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Common RFE’s

What is a Request for Evidence (RFE)? 

Immigrant and nonimmigrant visa applicants are required to provide certain documentation that pertains to the qualifications for any given type of visa. A Request for Evidence (RFE) is issued to visa applicants by the United States Citizenship and Immigration Services (USCIS) when the documentation provided by an applicant in their initial application is incomplete, unclear, contains some error, or is insufficient to meet the visa’s qualifications. Thus, an applicant must respond to an RFE by providing the specific documentation evidence requested by the RFE. RFEs may be issued to visa applicants who seek entry to the United States permanently or temporarily, under work-based or family-based visas.

How is a RFE Issued? 

When the USCIS determines that a visa application is missing important qualifying information or is otherwise lacking, it will send the visa applicant Form I-797E, Notice of Action. The form will list information and documents the USCIS needs to determine the applicant’s eligibility, and will provide a timeframe within which the applicant must respond.

Who Can Receive an RFE? 

Any individual who petitions for any nonimmigrant or immigrant visa to come to the United States can be issued a RFE if the USCIS finds the evidence submitted by the visa applicant lacking. An applicant who is issued an RFE should read it carefully and respond fully and completely to all specific evidence requests contained in the RFE.

What are Common Reasons an RFE is Issued?

There are a variety of reasons the USCIS may issue an RFE, especially because applications for different types of visas require different proof of eligibility. Generally, RFEs will identify the eligibility requirements that the applicant has failed to establish and why the evidence already submitted by the applicant is insufficient. Below are some common reasons RFEs are issued, listed for different categories of visa applicants. 

Marriage to Green Card Holder or U.S. Citizen

Individuals seeking to immigrate to the United States as a permanent resident based on marriage to a U.S. citizen or Green Card holder may be asked to produce additional evidence in a RFE after the USCIS has a chance to review the applicant’s Form I-130. Here are some common reasons RFEs are being issued to visa applicants:

  1. Missing Evidence Establishing Sufficient Income

The U.S. citizen or Green Card holder sponsoring their foreign-born spouse must demonstrate to the USCIS that they have sufficient financial resources or income to support their spouse in the United States. This usually requires that the sponsoring spouse earn at least 125% of the federal poverty line. The sponsoring spouse proves that they meet income requirements by submitting Form I-864, Affidavit of Support. A sponsoring spouse may prove they have sufficient income through their individual yearly income, combining the income of others in the same household, or using assets in place of income. It is common that a RFE is issued because the sponsoring spouse fails to provide some proof of income, assets, or to properly account for either. 

  1. Missing Copy of Form I-94, Request Travel History and Check Travel Compliance

If a foreign-born spouse is already in the United States at the time he or she is applying for their Green Card, they must provide proof that he or she is in the United States legally. The Green Card applicant can usually prove this through the stamps on their passport or by submitting Form I-94, Request Travel History and Check Travel Compliance. Failure to provide such proof has been a common oversight that leads to the issuance of a RFE. 

Since 2013, Form I-94 can be filled out online for most applicants, making it easy for applicants and Customs and Border Patrol (CBP) to access proof of legal entry into the U.S. However, the Form I-94 may still be in paper form for individuals who arrived in the U.S. before 2013 or if they entered the U.S. by land from Mexico or Canada. 

Individuals who have lost or misplaced their original I-94 and cannot access it online may submit Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document to request a replacement Form I-94. 

  1. Missing English Translated Documents 

The U.S. government requires that any documents submitted in any language other than English must be accompanied by a certified translation made by someone other than the sponsoring spouse or applicant. A translation is certified when the translator confirms in writing that he or she has translated the document accurately and completely, and includes the translator’s name, address, and signature, along with the date of the translation. An applicant or his or her sponsoring spouse may receive a RFE if documents are not translated or if there is insufficient proof that the translated document is certified or the translator’s information is missing.

H-1B Temporary Worker Visa 

The popularity of the H-1B nonimmigrant work visa has grown in recent decades, particularly within the U.S. tech industry. The H-1B visa can feel elusive, however, because it is subjected to an annual cap that limits the number of H-1B visas issued within a given year. Thus, it can be frustrating when an applicant receives a RFE from USCIS. Here are some of the most common reasons RFEs are issued to H-1B applicants. 

  1. Qualifications for Specialty Occupation

When an employer petitions on behalf of a H-1B applicant, both the applicant and the employment position must qualify for the specialty occupation. The USCIS will issue a RFE to the petitioner if the petitioner failed to establish that the employment position meets all the requirements of a specialty occupation, including that the position meets certain education and complexity requirements.

  1. Employer-Employee Relationship

A petitioning employer for a H-1B applicant must establish that there exists a valid employer-employee relationship between the employer and the H-1B applicant. A valid relationship requires the employer to have the right to control the visa holder’s work, such as the ability to hire, fire, and supervise the visa holder throughout the visa’s validity period. RFEs have been commonly issued to employers who fail to establish an employer-employee relationship exists, such as when the relationship appears to be more like independent contracting than employer-employee. 

  1. Availability of Work for H-1B Applicant Off Worksite 

Employers who seek to hire H-1B visa applicants must demonstrate that the visa holder will have specific and non-speculative qualifying assignments in a specialty occupation, including when the visa holder is slated to work at third-party worksites. The petitioning employer must establish that the visa holder will engage in qualifying work at the third-party worksite for the entire duration of the visa as requested on the petition. RFEs are commonly issued to employers who fail to show by a preponderance of the evidence that, while working off-site, the visa holder will be employed in a specialty occupation and the employer will maintain an employer-employee relationship, despite the work being off-site.

Immigrant Employment Visa Applicant

It has become an increasingly common occurrence for employment-based (EB) immigrant visa applicants to receive a RFE. There are several possible reasons an applicant may receive an RFE after Form I-140 is filed. Many of these reasons pertain to the specific parameters of the different EB visa types and their requirements. Here are some of the most common reasons RFEs are issued to EB visa applicants. 

EB-1 Visas 

Of all EB visas, the EB-1 visa has the most difficult eligibility requirements to attain. An EB-1 applicant must have an extraordinary ability, be an outstanding professor or researcher, or must be a multinational executive or manager. For example, an EB-1 applicant with extraordinary ability must prove they have sustained national or international acclaim and that their achievements have been recognized in their field of expertise, such that the applicant is at the top of their field. Moreover, this ability must substantially benefit the United States. Given these tough requirements, the evidence needed can be extensive, including receipt of a major internationally recognized award or documentation proving the applicant meets at least three out of ten other criteria. RFEs are commonly issued to EB-1 applicants when clarification or additional evidence is needed to prove the applicant’s extraordinary ability.

EB-2 and EB-3 Visas

Just as the requirements for the EB-1 visa are tough, the EB-2 visa eligibility requirements are tougher than those for the EB-3 visa. When applying for any EB visa, an applicant submits Form I-140, Immigrant Petition for Alien Workers. However, only EB-2 and EB-3 visa applicants are required to receive a Labor Certification from the Department of Labor.

Because the eligibility requirements for the EB-3 visa are not as strict as the requirements for the EB-2, opportunities have arose for EB-2 visa applicants to concurrently adjust their status to an EB-3 visa, particularly when the EB-3 visa’s date on the Visa Bulletin jumped ahead of the EB-2 visa’s date in October 2020.

Filing a new petition for an EB-3 visa is known as a “downgrade,” but can allow the applicant to receive a visa sooner. When an applicant does so, he or she must file a new Form I-140 to petition for the EB-3 visa, and this does not forfeit the I-140 petition for the EB-2 visa. Additionally, the applicant is permitted to use the same Labor Certification received for the EB-2 application if he or she will be working for the same employer, but a new one is required for different employers.

Most importantly, the priority date an EB visa applicant receives upon approval of their first I-140 petition is “retained” by the applicant for any other EB visa petitions subsequently approved for the applicant. This allows the visa applicants to improve their chances of receiving their visa under the Visa Bulletins action dates. However, there are some common reasons an applicant may receive an RFE in such circumstances, discussed below. 

  1. Priority of Retention Date and Employer’s Ability to Play 

When an EB visa applicant has secured employment with a different employer than the employer who filed the applicant’s initial I-140 petition, the new employer must file a new labor certification and I-140 petition, which retains the priority date of the initial I-140 petition despite it having been filed by a different employer. Because the original priority date is retained, the USCIS has tended to issue RFE’s requesting the new employer prove its ability to pay the applicant according to the retained priority date. 

This can be frustrating for the new employer, and even impossible to prove without obtaining financial documents from the applicant’s previous employer. Requests by the USCIS demanding proof of the new employer’s ability to pay based on the retained priority date are generally erroneous because the new employer’s ability to pay should be based on when it filed the new labor certification, since all labor certifications are specific to each job opportunity, and not the priority date retained from the initial I-140 petition. 

  1. Proof of Employer’s Ability to Pay

RFEs have commonly been issued when the employer’s ability to pay is brought into question by the USCIS due to some slowdown in business or financial loss that indicates the employer’s inability to pay. This has been more prevalent throughout the COVID-19 pandemic as many employers faced financial loss from public safety closures. However, applicable regulations state that an employer is still deemed able to pay so long as the financial loss would not preclude the employer from establishing its ability to meet the conditions of the certification in the job offer. Employers who report a substantially lower income in one year are not automatically prevented from establishing its ability to pay. The employer can prove this by providing evidence that the employer’s business is likely to grow and report profits.

  1. Job Offer Validity During Adjustment of Status 

When an EB visa applicant has applied to adjust their status using Form I-485, the USCIS sometimes issues RFEs when the applicant is currently employed by the same employer who submitted the new I-140 petition, but is currently in a different position from the one offered to the applicant and shown on the labor certification. The USCIS typically questions the validity of the job offer, which the employer should support with evidence indicating that the applicant will be employed as shown by the labor certification despite the applicant’s current position being different from the offered position. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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