RFE – The Acronym that Continues to Confound and Bewilder Practitioners
Under the regulations, the U.S. Citizenship and Immigration Service (USCIS) has the discretion to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) for immigration benefit requests in appropriate circumstances. The USCIS Policy Manual at Chapter 6 states that the agency also has the discretion in some instances to issue a denial without first issuing an RFE or a NOID.
Requests for Evidence (RFE) are often puzzling because the agency does not always articulate the logic behind issuing an RFE for one petition while approving another filed with very similar facts and under similar circumstances. This may be because the guidance offered to Officers about how and when to issue an RFE is confusing at best. The relevant portion of the USCIS policy manual states:
An officer should issue an RFE or NOID when the facts and the law warrant; an officer should not avoid issuing an RFE or NOID when one is needed. However, an officer should not issue an RFE or NOID if the officer determines the evidence already submitted establishes eligibility or ineligibility for the request. An unnecessary RFE or NOID can delay case completion and result in additional unnecessary costs to both the government and the benefit requestor.
Adding to the mystery is the fact that while a successful response results in an approval, it does nothing to offer any insight into the adequacy of the evidence provided. The “preponderance” standard of evidence is applicable in most immigration proceedings. This standard is based on whether the fact to be proven is “more likely than not” or “probably” true. However, the RFEs issued by the Service sometimes makes one wonder whether the Service has upped the ante in regular proceedings and has substituted the preponderance standard for the higher evidentiary burden normally applicable to most criminal matters.
For instance, after investing over $50 Million and creating over 50 U.S. jobs, a corporate client was recently issued an RFE requesting additional corporate information and an updated VIBE profile. As most practitioners know, the VIBE database has been outsourced to a private company that holds and controls access to the information. The mere process of setting up a VIBE profile takes time and is extremely cumbersome. On top of this, this private company relentlessly subjects participants to direct marketing for paid services. Although USCIS posts a disclaimer on their website about the free nature of the VIBE profile, it begs the question as to why this additional database is even required in the first place.
The other interesting fact about RFEs issued by USCIS is that most are based on templates created by the Service Center Operations Directorate (SCOPS) and the Office of Chief Counsel (OCC). Under then USCIS Director, Alejandro Mayorkas, the agency undertook a project in 2010, to review and revise RFE templates. At the time, the purpose of the project was to hold continuous engagement through listening sessions to ensure RFEs are:
- consistent across Service Centers
- relevant for the classification being adjudicated
- adaptable to the facts and needs of individual cases
- concise and clear
After a dozen years, we have seen little change in the way the Service handles the issuance of RFEs. If anything, the lack of consistency amongst the Service Centers has grown and continues to confound and bewilder practitioners. Old templates simply recite the regulations without providing any clarity. Even when the token analysis of the submitted evidence is offered, it simply amounts to a listing of a few documents, but not why they are deficient. It lacks, a facts-based description of what information is needed or would satisfy the evidentiary prong.
Extensions are often met with RFEs that request evidence already submitted with the initial petition. No attempt is made to acknowledge the fact that USCIS may already be in possession of this information.
During the 2010 listening session (arguably, only one session was held on April 12, 2010), USCIS was provided with feedback from the American Immigration Lawyers Association. At the time, Director Mayorkas indicated that he would be interested in a subsequent conversation. Twelve years later, it is time to ask Director Ur Mendoza Jaddou to please reengage with AILA and the stakeholder community to bring consistency and efficiency to the process of issuing RFEs.