It’s no secret that the RFE (request for evidence) rate for H-1Bs and other types of immigration filings have increased tremendously during the Trump administration. The RFE rate for H-1B petitions alone increased by 45% last year over the previous year, and we expect the same if not more this year. This increase in RFE rates is driven by the Trump Administration’s Buy American Hire American executive order. At this time, nothing in the H-1B regulations has changed, but USCIS is increasingly strict on H-1B petitions and other immigration filings, and cases that would have been approved are receiving very tough RFEs, and are sometimes denied.
Our office works hard to make sure that each filing is well-prepared, well-organized, and well-documented, and we work hard to stay on top of processing trends and advise our clients accordingly. However, in this challenging immigration environment, RFEs and unfortunately denials, are inevitable.
Is it time to crawl under a rock and hope this goes away, or move to Canada? No! We are here to guide you through this challenge for the highest chance of success! Before the RFEs for H-1B cap cases start flooding in, we thought we would give employers and employees an overview of what to expect, and how to best navigate potentially choppy waters ahead. Take a deep breath, and let’s do this!
What Is an RFE?
A request for evidence (RFE) is when USCIS needs additional information or documentation to make a decision on your case. In our current immigration environment, we are seeing RFEs issued more frequently for all case types.
What does the RFE ask for?
Unfortunately we cannot know what USICS is requesting until we receive a physical copy in the mail. If you check the status of your case online and see an RFE has been issued, it can take a couple weeks for our office to receive it in the mail from USCIS. Please understand we will let you know what we need as soon as we receive the request. We will not be able to answer questions asking what USCIS needs before we receive the RFE, simply because we do not know.
Timelines: What to Expect When
- USCIS issues RFE: As outlined above, it can take 1-2 weeks for our office to receive the RFE notice.
- Sumner Immigration Law (SIL) receives the RFE notice: We scan the RFE notice, which outlines what USCIS is asking for, and we email it to the employer.
- List of specific documents required: The SIL team will carefully review the RFE and prepare a list of specific documents or information that we need from the employer to respond to the RFE. This is not simply a process of cutting and pasting the language from the RFE, but rather a process of interpreting what USCIS is really looking for, reviewing the file to determine what we already submitted, and analyzing what information would best address USCIS’s concerns.
- We will aim to send this list of documents required within 10 business days of receiving the RFE. We will of course send the list before that timeframe if possible.
- USCIS typically gives us 87 days from the date the RFE is issued to gather the required documentation and submit a response to USCIS. USCIS will not extend this deadline for any reason, unfortunately, and everything must be submitted to USCIS in one package.
- The documents/information that we have requested from the employer will be due to our office at least 3 weeks before the RFE is due. This allows us sufficient time to review and sort your documents, request any additional documentation we may need, and draft the response.
- We will aim to submit the response to USCIS within 3-4 weeks after we have received the required documentation from the client. As always, we will submit the response earlier if possible (we love getting RFEs responses off our list!), but we simply cannot turn around the response immediately (see below). Likewise, we are not able to “expedite” a client’s RFE response and work on it before other RFE responses that have earlier deadlines or before other RFEs where the client sent us the required documentation earlier. We are not able to make exceptions to this policy.
- Once the RFE response is ready to go and filed, USCIS can take up to 60 days to make a decision on the case (or 15 calendar days if you filed through Premium Processing). They can take longer, but we cannot follow up with USCIS until after the response has been pending with their office for more than 60 days.
What Goes Into An RFE Response
I gave you my documents, so you can send everything to USCIS and that’s it, right?
Crafting a strong and effective RFE response goes beyond simply sending us your required documentation. Although the requested documentation is important, the attorney and paralegal assisting with your case typically spend hours drafting legal arguments that involve researching and citing relevant case law as well as industry/occupation-specific information. Please note that we cannot begin this process until we have received the documents requested from the clients. We of course balance of this for multiple RFEs , and we balance this with our “regular” caseload (i.e. non-RFE work). We kindly ask that the H-1B beneficiaries (employees) not email/call requesting updates. We will confirm receipt of the documents and we will let everyone know if we need additional information, and of course when the RFE response is filed. As you can imagine, when we have to take time to respond to status inquiries, that takes away from time we could be spending completing the RFE response.
RFE Season (as we call it) can be stressful and is certainly busy for everyone involved. We realize the importance of this filing and the tremendous impact that it has both for the petitioning company and for the individual employee. We also do not enjoy having a list of RFEs to work on (they’re really not that fun for us), so we are motivated to get them out the door as quickly as possible. We value our clients and want to do the very best work we can for you and your employees. We look forward to assisting our clients through the rest of the H-1B process and beyond. Thank you!