Dealing with a USCIS Request for Evidence (RFE) - Part 1

Ideally, your case is strong on the merits and well presented, and filing it results in a quick Notice of Approval at the initial review by the USCIS. But all cases are not strong, and good immigration lawyers can and do file marginal or “dicey” petitions, often for good reasons (that is the subject of a future blog entry). Let’s jump past that discussion for now and consider the sometimes dreaded, never happy “RFE.”

Types of RFEs

There are at least 5 types of RFEs. Today’s blog entry will discuss one of them. (The 5 types are 1. The bogus RFE to interrupt a Premium Processing Service deadline; 2. The nuanced or totally inscrutable RFE: “Playing Parlor Games”; 3. The “killer” RFE: the translation is “your case will be denied no matter what you submit” and 4. the documentary RFE: you forgot (or USCIS overlooked) a document, and it can be readily submitted or resubmitted with comfort that the Notice of Approval will be forthcoming as soon as the officer sees it. 5. The benign RFE: You overlooked an element of the case the officer has made a perfectly reasonable request for a legitimate reason, and the exact description of what is needed is explicit and (thankfully!) your client has the proof readily available.)

The client has hundreds of employees, including scores of engineers. The H-1B petition is for a for a Transformer Design Engineer earning $69,000 per year. All of the documentation was submitted and well organized to establish every element of the case, including a detailed statement of the profesional nature of the duties of the position. The USCIS issues the following RFE:

“The evidence submitted fails to establish that the position offered meets the definition of a Specialty Occupation. Please submit proof that the position requires a Bachelor’s degree.”

"Really?" You say. In immigration practice at the USCIS Service Centers, yes, really.

The motivation for this mishugas is utterly transparent:, merely cutting and pasting some “boiler plate” text into an RFE, and creating a fax cover, can be accomplished in 45 seconds, and adjudicating the case to completion would take 45 minutes. Perhaps the USCIS officer’s daughter’s soccer game was starting in 30 minutes. Whatever the reason, your case is on hold until you respond. And it has to be the correct response.

An experienced immigration lawyer can address this RFE in a way which forces the USCIS to approve the petition, and counsel should not be worried about winning the case. But counsel must be careful: The response to the RFE is the one and only opportunity to create a record of fact and law. Obviously, the Officer is either untrained, lazy, or just hostile to the case for some unknown reason.

The only safe response will be a structured and referenced reply, overloaded with evidence and advocacy, and replete with citations to U.S. Government resources, university web sites and other independent statements of the obvious: that a Transformer Design Engineer position requires a person with a Bachelor's in Electrical Engineering, due to the nature of the duties. A "dumb" RFE is like a poisonous reptile, just a much as the RFE which obviously foreshadows an intent to issue a final denial.