Requests for Evidence

Requests for Evidence (RFEs) - I-797 requests for additional information - are typically issued when an examiner is uncertain of the merits, or a desired piece of information is missing. When Premium Processing is involved the RFE usually is faxed. Follow the instructions on the form and respond within the designated time. Generally, the service centers move quickly once they receive an RFE response. Some RFEs simply seek additional information, information the petitioner might have done well to provide in the first place. Others will give the petitioner some insight into the thinking of the examiner in question. If the examiner seems adverse to the petition, consider retaining immigration counsel.

Note that when responding to the service center, petitioners should enclose a copy of the RFE that was issued on top of the information requested, and don't forget to send a duplicate copy of any new material you are submitting. Responses which do not include the RFE cover sheet could delay any subsequent review of the filing. In addition, any delay in getting information to the file could mean that a final decision or a no response denial may be issued in error.

In a July 13, 2018 memorandum, USCIS announced a change in policy whereby, effective September 11, 2018, adjudicators at the service centers will have “full discretion” to deny visa petitions without first issuing an RFE or a Notice of Intent to Deny (NOID). Although previously adjudicators were required to first issue an RFE or NOID except in extreme cases in which a petition is clearly deniable or the petitioner has requested the wrong category without any possibility of approval, this is no longer going to be the case and it will be at an adjudicator’s discretion whether a petition it deems to be insufficient will result in an immediate denial or whether it will issue an RFE or NOID to allow the petitioner to respond.

The memorandum states:

This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

However, it also includes the following as an example of a possible denial:

Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission.

In light of this change in policy, petitioners will need to be even more careful when assembling the required elements of a visa petition.

NEXT