Free EB-5 Project Evaluation How to Respond to a USCIS Request for Evidence (RFE)

During the adjudication process, United States Citizenship and Immigration Services (USCIS) may determine it needs more information or some form of clarification in order to proceed with a petition. In such cases, USCIS issues a Request for Evidence (RFE).

Understanding RFEs

The first step to dealing with an RFE is understanding what an RFE is, what it is not, and some other important information. You should also consider retaining experienced immigration counsel to help you submit a response to an RFE.

What is an RFE?

An RFE is a form of communication between USCIS and a petitioner through which USCIS asks the petitioner for additional information necessary for the adjudication of a petition. This tool allows USCIS to fill in any missing documentation, clarify any confusion, and correct any discrepancies.

Note that an RFE is not a denial, nor does it necessarily indicate the petition will be denied. If an application clearly does not meet the requirements of the EB-5 Program, USCIS may, at its discretion, deny it outright by issuing a Notice of Action denying the petition. When a petition includes enough initial evidence for a negative determination, however, USCIS may instead issue a Notice of Intent to Deny (NOID).

How is an RFE different from an NOID?

An NOID is similar to an RFE in that it gives the petitioner a chance to provide evidence to convince USCIS to approve the petition, but an NOID is much more urgent since it indicates a case is at a high risk of being denied. Upon receiving an NOID, a petitioner should act immediately to try to salvage his or her case.

While perhaps not as serious as an NOID, an RFE should be handled with care because a petitioner’s response will likely determine the outcome of the case. A petition that would otherwise be successful can be derailed if an RFE is not adequately dealt with.

Unlike an NOID, however, which is issued when the evidence is generally sufficient for a negative determination, an RFE is issued when a petition lacks sufficient information for a determination at all—or when some details of the petition are inconsistent with other details or are otherwise unclear.

How long does a petitioner have to respond to an RFE?

Upon receiving an RFE, a petitioner has a limited time to respond. The deadline for response will be indicated in the RFE and is typically between 30 and 90 days. Once an RFE is issued, all work on a case is halted—so a prompt response is important. Failure to respond by the given deadline will likely result in denial.

Can a petitioner send multiple responses to an RFE?

Typically, a petitioner has only one opportunity to respond to an RFE—once a response is received by USCIS, the agency will move forward with adjudication. If a petitioner sends an incomplete response or multiple responses, USCIS may not consider any evidence beyond what was sent in the first response packet.

A partial response may be appropriate, however, if a petitioner is unable to gather all the evidence requested by the deadline. An incomplete response is better than no response at all because failure to respond almost guarantees the petition will be denied.

If a response to an RFE is incomplete or generates additional questions, USCIS may, at its discretion, issue an additional RFE.

Responding to RFEs

Receiving an RFE can seem intimidating, but you shouldn’t panic. In fact, since USCIS can deny a petition without issuing an RFE, you might think of an RFE as a second chance to convince USCIS to approve your petition.

While some RFEs are simple and clear requests for specific documents, others are more complicated. If in doubt, consult an experienced immigration attorney.

Review the RFE

One of the first things you should do upon receiving an RFE is take note of the date the RFE was issued and the number of days given to respond. Be sure to mark the deadline on at least one calendar. Note that the deadline indicates when the response packet must be received by USCIS—not the postmark date.

You should make at least one copy of the RFE for your records; the original will constitute the first pages of your response packet. In addition to a copy for your records, you might consider making a copy of the RFE to mark up as you work through it.

Carefully read the RFE and note the evidence USCIS is requesting as you go. USCIS expects specific documents that clearly prove your case. If you aren’t sure about what evidence will satisfy a particular request, you’ll need to conduct some research or consult a lawyer. You must reply to every request—failing to do so will likely result in denial.

Research the RFE

After carefully reading through the RFE and listing the specific requests made by USCIS, you should do some research on any laws, regulations, or other sources cited as support. Typically, an RFE cites regulations, memorandums, and USCIS guidelines in addition to cases and precedents set by the Administrative Appeals Office (AAO), Board of Immigration Appeals (BIA), Board of Alien Labor Certification Appeals (BALCA), Courts of Appeal, and the Supreme Court.

At times, the support cited by USCIS is taken out of context or is inconsistent with other USCIS guidelines, memos, or standard operating procedures. An RFE may also request information that has already been filed or, in some cases, ask for information that simply does not exist. USCIS adjudicators are not infallible and, sometimes, mistakes are made.

RFEs have also been used in attempts to ascertain information with no bearing on their respective cases.

If you suspect some element of the RFE is not appropriate, legal, or otherwise correct, you should consult an experienced immigration attorney, who will be able to help you explain in your response how the requested documentation is inappropriate or does not satisfy any pertinent regulation.

Collect and compile the requested evidence

An RFE can be successfully overcome by providing the necessary evidentiary documentation in a clear and well-organized format.

USCIS may request a specific document that you either failed to include in the initial filing or that the adjudicator overlooked. In these cases, you must simply provide the requested document.

For example, an RFE may request a missing form. All necessary forms are available for free at the USCIS website. An RFE might also request affidavits from family and friends, which should be notarized. Or an RFE might requests some form of civil document—such as birth, marriage, and death certificates—which might not be available depending on your country of origin and other factors. The Department of State offers a Reciprocity Table that indicates what documents can be substituted for others under given circumstances.

In addition to requests for specific missing or deficient documentation, USCIS might issue an RFE because the adjudicating officer has doubts or a lack of clarity regarding your case. If this is so, you may have to accumulate additional evidence that may not be specified explicitly in the RFE.

Sometimes, the adjudicator needs an explanation of how the provided evidence does, in fact, meet the requirements of the EB-5 Program. Such explanations will likely require the assistance of an immigration attorney.

The response packet should be arranged with the original RFE on top followed by a cover letter and then all the requested documents presented in the order in which they were requested in the RFE.

When drafting the response cover letter, you should generally mirror the RFE to clearly demonstrate that the response packet fully addresses every issue raised. Use headings, subheadings, numbering, and bullet points as necessary to keep the content organized. Avoid lengthy paragraphs, and be sure to clearly indicate whether content is fact or analysis. Present any data using graphs and charts.

Once the response packet is finished, make an exact copy for your records.

Send the response to USCIS

The envelope provided by USCIS has a barcode used in the continued processing of your case, and so, if the entire response packet fits into the provided envelope, use it. If the packet will not fit, you should attach the envelope to the top of your response. If the envelope with the barcode is not used or included, your case will be delayed further.

The RFE will indicate the address to which you should mail your response. Be sure to use this address even if you have sent other correspondence to USCIS at a different address.

Send the response via priority or certified mail with some form of delivery confirmation, which will serve as proof that the RFE response was delivered to USCIS by the deadline. If sending the response on or near the deadline, you should send it using a next day or overnight delivery that would adequately ensure the response is delivered on time. Once you receive proof of receipt from USCIS, attach it to your copy of the response packet.

Upon receiving your response to the RFE, USCIS will usually take further action on your application within 60 days—but as always, wait times can vary greatly.