Published by Manny in EB1 | Updated 2024
- Take a breath. This is not a personal attack – they want to approve you but you need to help them. While you wait in the mail for it to arrive read our article “28 Reasons for a Denial/RFE“
- Time Limit – you should respond to the RFE within the time frame indicated by USCIS, usually 30 to 90 days. If you don’t respond or provide inadequate evidence, your case will more than likely be denied
- Read and reread the RFE
- Read your petition letter If you filed using an attorney and never read your petition letter before submission – READ IT NOW!
- Photocopy the RFE and make notes on it
- Breakdown exactly what is being requested
- Compile your documents
- Formulate your cover letter using the wording from the RFE.
- Follow the order of the RFE, list evidence and it’s relevance to their request
- Consider including a [Personal Statement]
- Color sheet – Return your argument with the color page on top to the address they provided.
Your extraordinary application may have received an RFE. RFE stands for Request for Evidence – a notice from USCIS indicating that the immigration officer in charge of your case needs more information from you before they can approve you.
This article is relevant to all extraordinary visas EB visas, including NIWs and temporary visas such as the O, P etc.
If you have received a NOID Notice of Intent to Deny the below advice should help you. Have a read here for more – [Notice of Intent to Deny: there may still be a chance of approval].
An RFE is not a denial – your officer wants to approve you – these visas are paper heavy you must provide more information or documentation to help them approve you. Everyone that we personally know that has responded to their RFE has been approved.
It may be a very simple RFE – they may simply require your marriage certificate or your birth certificate. Please don’t worry until you receive the letter. It’s likely an administrative issue and a simple fix. This may become more prevalent when EB1’s are not [current]. If you concurrently filed your I-485 with your Medical exam the exam might be out of date. This happened to one of our friends – when they saw the notice on the USCIS Case Portal they had a melt down. When they finally received it the letter the RFE just asked for a document translated.
Be aware that some attorneys may charge extra to submit the RFE on your behalf. If you cannot afford to use your attorney we hope this article empowers you to respond yourself or build your own response and hire them to file it on your behalf for a negotiated rate.
Some attorneys ‘hold back evidence’ in anticipation of an RFE as a strategy. “Form I-140 petitions may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.” This suggests that applicants should submit all relevant and sufficient evidence at the time of filing, and not wait for an RFE to do so. If this is you, don’t worry your attorney should have this handled.
An RFE slows down the overall processing time of your visa. when you consider that it will take time to prepare your response, mail to USCIS, then for them to review it and issue their decision on your case, it can take can increase of overall processing time by 3 to 6 months.
If your RFE is for your I-140/I-129, be prepared to get back to work… Responding to an I-140 RFE can be as big a job as the initial filing, but please don’t worry!
3 Ways to Respond
- Submit a complete response containing all requested information
- Submit a partial response, which is considered a request for a decision on the record or
- Withdraw the application or petition.
Failure to Respond to an RFE or NOID
If you don’t respond to an RFE or NOID by the required date, don’t submit requested evidence that is relevant the USCIS:
- Deny the benefit request as abandoned
- Deny the benefit request on the record or
- Deny the benefit request for both reasons.
When you receive your RFE you must note the instructions.
You have received the RFE usually because your petition is lacking in evidentiary support or that the evidence you submitted is insufficient, irrelevant, or outdated.
Start working on gathering the evidence as soon as possible. Sometimes the evidence requested by USCIS is very simple.
You must prepare a strong and persuasive response.
Collecting your Response
Firstly, follow the instructions given by USCIS carefully and provide the requested evidence in time (Check the deadline).
Here are some steps you can take to prepare a successful RFE response:
- Photocopy the USCIS RFE notice – make notes on that to ensure you are not missing anything and to keep for your records.
- Read your petition letter, if you had an attorney submit your application and you are working with one now on your RFE – get a game plan together.
- Understand that the USCIS examiners work from a standard template for the RFE – it’s nothing personal. Click here to get the template. They need you to prove [Intent to Continue], [Benefit to the United States], and at least 3 criteria.
- Be systematic in gathering the evidence and make sure it is clear, complete, and relevant. The USCIS give you examples of the documentation they need as proof. You may need to obtain new documents, translations, or testimonials from third parties, some pieces you may have already submitted but still for easy of the examiner submit them again. The RFE could be very simple, just requiring a marriage certificate, for example.
- Write a cover letter that details your evidence in your response in a similar way as how your petition letter was written. The letter should explain how each piece of evidence meets the extraordinary criteria and responds to the RFE.
- Use an [Index of Exhibits] similar to your original petition, organizing your evidence in a clear and logical manner and labeling each document accordingly.
- Consider submitting a [Personal Statement] concentrating on your goals in your field and how those career achievements will benefit the United States. If you feel there is more that is not covered in your RFE submission this is where you can argue your case. It can be in your conclusion or as a separate essay to support your case – focus on you as a whole and what you intend to do in the USA.
- Organize your packet in the same order as the RFE notice and use tabs or labels to separate each item just as you did for your original application: the cover letter, the copies or the originals if required of the requested evidence placing the colored sheet they sent you on top. The USCIS has a specific filing system. They will give you a color sheet to put on top of your response. This helps easily identify that this is a petition under review and gets it to the correct examiner fast.
- Submit a complete response with all requested information.
- You should make a copy of your submission for your records and in case the packet is lost.
- Mail your RFE response packet to USCIS address indicated on the RFE notice. We recommend using the USPS tracking and confirmation service as it is a government run entity. They must receive your packet before the deadline not the “I popped it in the mail date”.
- Keep a copy of your mailing receipt and tracking number for your records and mark in your calendar the estimated time of delivery.
- Check your Case Status online too to ensure it was received and is being processed.
Do not have all the Requested Evidence
If you don’t have all the requested evidence, try to provide alternative or comparable evidence that can satisfy what they are lacking – a new testimonial letter to bolster a criteria can be a powerful support item to have in your file.
New Evidence
Evidence must show that you were eligible for the extraordinary visa when you filed Form I-140 petition. This implies that any evidence submitted after the filing date may not be considered by USCIS.
How much evidence should you provide?
There is no definitive answer to how much evidence you should submit – it really is determined by what is requested by the USCIS. The officers responsibility is to evaluate the legitimacy, quality, relevance, and persuasiveness of your evidence, not just the quantity. Submit enough evidence to show that you meet or exceed their requirements. Your evidence should cover different aspects of your work and achievements, not just repetitive or redundant evidence.
As a general guideline, look at what is asked by the examiner and do your best to provide three pieces of evidence for each request. Avoid submitting evidence that is vague, incomplete, or unverifiable. In your petition letter you will provide clear and concise explanations of how each piece of evidence responds to their RFE.
Take an ‘over-evidencing’ approach to building your response. Provided they are relevant, there are no restrictions on the volume or kind of documents you can submit to support your application, think outside the box for less obvious documents.
Things to know
The USCIS do not have a set time for when they will assess your new evidence. The RFE will return to the examiner in charge of your case.
Submit all the information at one time, not in stages.
Use bullet points as much as possible.
Your RFE will have your USCIS Examiner identification number, out of curiosity, you can google search to see if you can find information about them on some of the immigration forums and websites. WARNING: Don’t post anything online about your examiner, especially unsavory. They are humans doing a job. (It is debatable whether there is any benefit to looking up your examiner – you can’t change your examiner by withdrawing your case and applying again and even then there’s no guarantee you won’t just land straight back on their desk. However, you may find out if they are more or less lenient on certain issues and this could direct your approach on certain issues. Your call…)
Final Merit Determination
The USCIS are required to make their own [Final Merit Determination]. This officer may be ask you to do that for them – it has been known to be requested in some RFEs. Some attorneys pop in this as an extra paragraph at the end of the original petition letter. It is our opinion that this allows USCIS examiners to simply skip to that paragraph and make a quick decision – this has positive and negative results. If this paragraph is weak, the officer could deny the application without ever fully investigating the full petition letter. If this paragraph is requested in your RFE it is your undertaking to make this a compelling argument that cannot be denied. It might be wise to approach your response to this request in an essay format.
Two-part Final Analysis
The last section of the RFE details the two-part final analysis, wherein your examiner will:
Evaluate the evidence together in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has sustained national or international acclaim and that the beneficiary’s achievements have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has risen to the very top of the field of endeavor.
The petitioner must prove, by a preponderance of the evidence, in other words, that it is more likely than not, that the beneficiary is fully qualified for the benefit sought.
Just as with the petition letter they will look at your overall submission and make a judgement call. We don’t know of anyone who was successful in satisfying all the criteria but was denied on final analysis, but this wording wouldn’t exist if it wasn’t sometimes used.
Your Chances of Approval
The officer didn’t think they should deny you and yet, they needed more to approve you – you are 50.5% there. Responding to an RFE does not guarantee approval but it certainly increases them – the USCIS can still another RFE if they are not satisfied with your evidence. Or worst case issue a denial. If you receive a denial, you can refute that with evidence too. We discuss that here.
Please do not send any extra or unnecessary documents that are not requested by USCIS. They are busy people! Keep your response simple and to the point.
Please don’t ask for extra time to respond unless you can prove reasons of extraordinary circumstances beyond your control that prevented you from responding on time: natural disaster, serious illness, or death of a family member. Then you can request a discretionary extension of time by submitting a letter explaining your situation and providing supporting evidence. The USCIS is not oblige to grant extensions and there’s a chance will will deny your case if you fail to respond by the deadline. So don’t wait, respond as soon as possible and not wait until the last minute.
Genuinely don’t have what they are looking for?
This is not an official denial. You can Withdraw Your Application – read here.
If every criteria has been bounced back to you it may seem impossible to achieve. Be organized and methodical and you will get through this. The officer understands you are human, make the concerted effort to do what you can.
Remember – If you are doing this on your own you can always ask an attorney that deals with EB cases to read your RFE for you before submitting, they should only charge by the hour.
If you need examples of quality, relevant, and persuasive evidence we break down each section for each criteria – click here for ARTS, ATHLETICS, BUSINESS, SCIENCES, EDUCATION
How to organize and label your evidence here – [index of Exhibits]
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All articles are written from our experiences and the experiences of our colleagues. These are fantastic visas and we wish to empower others in applying. This information is for general guidance only and shouldn’t be considered legal advice.
If you have any questions or encounter any issues that we have left out let us know – it is important that others are aware. Email here!