Are Requests for Evidence Inevitable?
I am afraid so. We and all of our colleagues, despite submitting enormous filings containing evidence on every conceivable point, are seeing Requests for Evidence (RFE) in nearly all of our cases. These days a case that goes through without an RFE is the exception and not the rule. We are now routinely advising clients to expect an RFE.
An RFE is a Request for Additional Evidence issued by the adjudicating USCIS officer when the officer does not believe that sufficient evidence has been submitted to demonstrate, by a preponderance of the evidence, that the applicant has made her case. RFEs are also issued if the officer decides initial evidence is missing.
Why the inevitable RFE?
In many cases, RFEs are issued in error. For example, last week we received an RFE for a marriage-based case requesting an Affidavit of Support from the U.S. citizen sponsor and a tax return. We did not submit an Affidavit or Support or tax return with our initial filing because the rules provide that where a sponsored immigrant has worked in the U.S. for 10 years and has accrued at least 40 quarters of employment that are counted towards social security, the sponsoring spouse does not need to submit an Affidavit of Support or a tax return. Why did we get an RFE? There is no reason other an USCIS error which causes unlawful delays and anxiety for our clients.
In other H-1B cases we are seeing RFEs all over the map for start-up companies, despite USCIS and the Department of State denying that public policy is driving adjudications. We believe that standards have become impermissibly strict especially for small businesses with Indian and Chinese nationals.
Recently one of our start-up companies received an RFE that requested additional evidence on every single point for an H-1B beneficiary with a relevant Bachelor’s degree and two relevant Master’s degrees from U.S. universities. The start-up is a wholly-owned subsidiary of a publicly traded Indian company with many millions of dollars on hand to transfer to the U.S. company. Our RFE response weighed in at 8 pounds!!! It is little wonder that companies are deciding to set up shop elsewhere and that these brilliant and motivated entrepreneurs, fresh out of U.S. universities with their hard earned graduate degrees, are choosing to go home rather than face the harassment currently dished out by USCIS adjudications.
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