Request for Evidence

Posted on December 04, 2007 by Warren Wen | Category: Immigration

The Unwelcome Guest – Request for Evidence

Recently, we have been experiencing a rapidly increasing number of immigration cases that have received the Request for Evidence (RFE) after receiving the Receipt Notice.  Nowadays, so many I-140 Petition cases have received the RFE that it has become common practice for us to expect an RFE before the delivery of an Approval Notice.  In the area of R-1 visas, we have all heard about how complicated and difficult religious visa cases have become over the year, so it may not be as surprising to receive an RFE for these types of visa applications.  However, the impact of recent changes in immigration was much more apparent when an R-visa case we filed in the past summer received an RFE.  The USCIS requested more than 10 types of evidence, and we ended up submitting more than 20 documents as evidence.

That’s not all.  In the past, we’ve had a history of getting several online-filed applications for Labor Certification using the PERM system approved as fast as in one day without much hassle.  However, after the Department of Labor raised the issue that many employers and brokers had been abusing this system and many fraudulent cases had been reported, more cases tend to be selected for auditing.  In attempts to stop some of these fraudulent cases, the Department of Labor has been requesting more employers to respond to Online Questionnaires within 7 days from the day the employer receives this request in their email.  In these online questionnaires, the employers are to confirm whether they are really sponsoring the alien workers for the position applied.  In addition to such efforts, we have also been informed by some employers that they have been requested to provide Proof of Business Necessity by the Department of Labor to show the true existence of the business when the employers tried to set up online user accounts with the Department of Labor using the online registration process.

For those employers and alien workers who have been waiting for their immigration cases to be approved for a long time, the receipt of RFE notices not only puts them in a bad mood, but it may even make them panic because many people think that the RFE is a sign that their cases are about to be denied.  But what do these unwelcome RFE notices really mean?

Most of the Requests for Evidence received in connection with I-140 petitions ask employers to prove the financial ability to pay the proffered wages for their sponsored alien workers.  In another words, the USCIS is asking the employers to provide documents proving that the company is making enough income to pay the wages of the alien workers if they are hired.  In order to prove this capability, the company can provide its federal income tax return from the most recent year.  However, if the net income amount in the tax return does not reflect a strong figure because the company is fairly new or the size of the company is too small, the employer may also prepare an up-to-date income statement showing other assets and properties or monthly bank statements showing strong balance figures.

It is important for the employers and alien workers to note, however, that more diverse evidence types have been requested by the USCIS lately.  One example would be an RFE received for a Chinese client’s I-485 application.  The request was to explain the gap between the date his birth was registered in the office and the actual date of birth shown on the alien’s birth certificate.  For many Chinese who come from older generations, computers are still very foreign to them.  The registration of the birth of a child was much more inconvenient for them in the old days.  I believe this is true for many older Koreans as well.  This was why this particular Chinese client’s birth was registered at much later time, and he needed to simply explain this in his response to the RFE.  This example indicates that the immigration officers are reviewing the applications more carefully these days, and that applicants need to pay more attention to the details of their supporting documents when preparing an application in order to avoid an RFE.

We have seen many cases being approved in less than a couple of weeks after the RFE was submitted according to the instructions.  Thus, the RFE should not necessarily discourage people.  Instead, it can be understood as a good sign, as long as one can follow the instructions and prepare the required documents.  Compared to the cases that have been pending and unheard of for many years, the RFE could actually be interpreted as welcome news that the immigration officers are willing to approve the cases as long as some of the questions can be clarified.  Regardless of what type of case the RFE is for, one can expect a positive outcome if one can comply with the instructions given on the RFE and submit the requested documents in time.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.