To Fear or Not to Fear the RFE….that is the question

Categories: Immigration Lawyer Blog San Diego

As an attorney, receiving the dreaded Request for Evidence (RFE) makes for a frustrating day. RFE’s can be issued for all types of cases including an H-1b, L-1, O-1I-140, and I-485. The realization that your perfectly presented argument(s) and supporting evidence were not fully convincing to an adjudicator can be disappointing, but there are different ways to approach an RFE.  First, really look at the content of the RFE itself.  Is it a kitchen-sink RFE with language that you see time and time again, or does the RFE contain valid points and arguments to explore further?  Either way, an RFE presents an ultimatum – a line in the sand that is drawn by USCIS for the attorney to cross – and therein lies the challenge.

 

Kitchen-Sink

The somewhat ridiculous kitchen-sink RFE can exhaust hours of work and delay the processing of a nonimmigrant or immigrant petition by months.  It is also commonly issued nearing the end of a posted processing time, premium or otherwise.  Although your instinct is to forward each and every one of these RFEs to your AILA liaison as evidence of the ridiculousness and carelessness of the officer, quota pressures, USCIS processing times, etc., the reality is quite different – you just need to work through it.

It goes without saying that it is imperative to discuss the RFE at length with your client, especially when it is an extensive and detailed request.  Spending time evaluating a long and drawn out RFE not only sheds light on newly discovered evidence from an attorney’s perspective, but it assures your client that the pages of questions from USCIS does not equate a denial.  Rather, it is an opportunity to defend your client and his/her work.  We encourage just enough frustration from our client to want to prove USCIS wrong (i.e. how can they think my research focused on the dissection of ABC into XYZ is nothing short of genius?)  We find that a little bit of “how dare they” goes a long way in terms of cooperation from both the client and outside resources in generating additional supporting evidence.  Further, we spend a great deal of time explaining to a client that as ridiculous as a request may seem, it must be addressed, and as such, slow down!  A hastily put together RFE response is a recipe for denial, and rushed evidence is even more damaging.  Spend the allotted time for an RFE response and present a clear and strong case to defend your client.

 

Clean and Simple

When you know an RFE is coming, and you fear the kitchen-sink, it is somewhat of a relief to see the request from USCIS is simple.  However, even with a basic RFE response, it is still important to present the evidence in a clear and organized fashion.  Regardless of the content, an RFE should be taken extremely seriously, and presented in a fashion that represents the purpose – our client’s best interest.

 

They May Have a Point…

I dare any attorney to attest to the fact that each and every one of their filed cases were 100% solid, no questions asked, absolutely valid, etc. etc. etc.  That is just not the case.  As an attorney, we need to present the best possible argument to USCIS on behalf of our clients, but there are situations when a client may be borderline on a specific category.  In these situations, not only are we upfront to our clients on the risks involved, we realize an RFE may be a part of the process.  Responding to those more valid RFEs seem to involve less frustration from both an attorney and client perspective, and usually include an open discussion with the client on the chances of moving forward.  As every case is different, it is not always clear whether or not to move forward with this type of RFE.  As an attorney, that is extremely difficult, as an unanswered argument can be looked at as a win for the other side.  However, the client’s interest must be the most important factor when looking at USCIS’s reasonable and valid questions regarding the case, and sometimes the answer is not always clear.  In those cases, we work with our clients to research, review, and respond accordingly.

 

Final Thoughts

So – should we fear the RFE?  The answer is simple – absolutely not.  RFEs are a part of immigration law and as such, we must look at each and every RFE with vigor and result.  Defend your client, present your argument, and work through the challenge of the RFE…you have no other choice.