Preparing a Winning Response to a USCIS Request for Evidence (RFE)
Most immigration practitioners have experienced the dreaded Request for Evidence (RFE) issued by USCIS. For the lucky few, the RFE is only a few pages long requesting documents which may have been inadvertently left out initially. For the majority of practitioners though, the standard RFE spans multiple pages (usually garnering the “kitchen sink” moniker). By getting a handle on the process, you can prepare a winning response.
There is nothing worse than losing track of time, except when you miss a deadline. (And there you might be subjecting yourself to malpractice liability!) Whether it’s marking one, two or even three separate calendars, make sure you manage the deadlines for your RFEs. This includes forecasting how long it may take your clients to obtain the necessary documents and provide it to you, as well as how long it would take you to prepare a complete response. Electronic case management software is an excellent way to keep track of deadlines, including RFEs, and the workflow that accompanies them. It’s also a good practice pointer to indicate in your response that you are filing within the deadline to ensure the officer reviewing your case is fully aware that you have met the deadline.
DEALING WITH THE LAW
Always start with the law. Have the regulations been properly cited in the RFE? Is there an interpretation of the law in the RFE that is inconsistent with USCIS guidelines, Memos or SOPs? Is there controlling or persuasive legal authority that you aren’t aware that can bolster your case? There are times where an RFE may not have properly cited a regulation or portions where a criterion from one visa category may have been substituted from another visa category. Not everything that is requested in an RFE may be appropriate, legal, or correct.
From a reader’s perspective, a response brief that is a memorialized stream of consciousness can be difficult to read, especially when paragraphs take up half a page. Rather, use headings and sub-headings, numbering and bullet points. Indicate clearly your citations and exhibit references. Use discrete paragraphs when making legal analyses versus factual analyses. Where data is analyzed, use charts, graphs or other image representations. Print in color whenever possible to break up the monotony of black and white. Insert necessary tabs. All of these tips will make your response easier on the reader’s eyes.
ONE MORE THING!
If you are in the midst of preparing a response to a ten-page RFE, make sure you set aside a long, uninterrupted amount of time to concentrate. There is nothing worse than having to respond to multiple emails and phone calls in the middle of drafting a brief. The remainder of the substantive legal and factual analysis, however, will be entirely up to you and the talent you employ. Good luck!