Navigating the employment-based immigration process for an EB-1 visa can be a daunting task. The visa is designed for individuals with extraordinary ability in their given field, so proving yourself among the elite can be difficult. To make things even more challenging, the United States Citizenship and Immigration Services (USCIS) may issue a Request for Evidence (RFE), requiring you to provide additional proof to support your application. This article aims to guide you through the steps to successfully respond to an EB-1 RFE.
Received an EB-1 RFE? Contact VisaNation for a comprehensive RFE response
What is an EB-1 RFE?
A Request for Evidence is a notice from USCIS asking for additional documentation or clarification to support the claims made in your EB-1 visa application. An RFE is not a denial, but merely a request for more information.
The EB-1 visa is designed for individuals who excel in their field of work. The visa has three main categories: EB-1A for individuals with extraordinary ability, EB-1B for outstanding professors and researchers, and EB-1C for multinational executives or managers. The evidence required by the USCIS varies depending on the category. Here’s what you need to know:
EB-1A: Extraordinary Ability
- Criteria: At least 3 out of 10 set by USCIS or a one-time significant achievement (e.g., Pulitzer, Oscar, Olympic Medal).
- Examples: Major awards, association memberships requiring achievement, media coverage, scholarly publications, high salaries, and roles in distinguished organizations.
EB-1B: Outstanding Professors and Researchers
- Criteria: At least three years of experience and meet at least two specific criteria.
- Examples: Major awards, scholarly publications, professional association memberships requiring achievement, experience judging others’ work, and original contributions to the field.
EB-1C: Multinational Executives or Managers
- Focus: Managerial or executive roles in a multinational corporation.
- Examples: Organizational charts, detailed job descriptions, annual reports, performance reviews, employment contracts, and financial evidence like pay stubs.
If you’re unsure about any of the criteria or evidence, it’s advisable to consult with an immigration attorney specializing in EB-1 visas for personalized guidance.
When the USCIS feels there is an insufficient amount of data or explanation provided for the visa, they may issue a Request for Evidence (RFE) for further proof of merit. It is crucial to respond accurately and promptly to give your application the best chance of success.
Example EB-1 RFE Response
Our team recently received an EB-1A RFE for a case involving an entrepreneur within the Fashion-Technology sector who was a founder and leader of a venture-backed startup.
VisaNation attorneys initially submitted thorough evidence of the beneficiary’s prizes and awards, two of which were internationally recognized scholarships awarded for exceptional merit and leadership within the highly prestigious fashion and design field.
The RFE issued by the adjudicating officer stated “We do not consider such an honor to be a nationally or internationally recognized prize or award for excellence in the field of endeavor, because it is given only to students or early career professionals in the field, inherently excluding established professionals who have already achieved excellence. ”
In our RFE response, we dismantled the argument of the USCIS officer by successfully showcasing that ” USCIS Policy Manual, Volume 6, Part F, Chapter 2, expressly indicates that a scholarship nationally or internationally recognized as awards for excellence [has the requisite level of recognition] to satisfy the requirements for this criterion.”
The key takeaway from this RFE response is that an RFE is not simply about presenting new evidence. It all requires the ability to recognize when an officer has overlooked existing evidence or has misinterpreted the law, and the skills to present a concise and thorough legal argument based on established law.
Importantly, RFEs frequently differ from case to case because each petition is unique and requires different evidence to satisfy the criteria, and adjudicating officers analyze cases differently.
What is the Processing Time for EB-1 RFE?
The duration for USCIS to process an RFE for an EB-1 visa can vary substantially from case to case. Factors influencing this include the specific details of your case, the particular USCIS office reviewing it, and current caseloads.
Usually, USCIS allots a period of 60-90 days for applicants to submit their RFE responses. After receiving your comprehensive response, USCIS generally aims to finalize its decision within a 60-day timeframe, although more intricate cases requiring additional review could take several months.
If time is of the essence, you might consider opting for premium processing. This expedited service comes with an extra fee but promises a decision or action from USCIS within 15 business days. It’s important to be aware that if a subsequent RFE is generated, the 15-day timeline restarts once your updated evidence has been submitted to USCIS.
Cost of an RFE
There is generally no separate fee charged by the USCIS for issuing or responding to a RFE. The fees for the original visa petition should cover the RFE process. However, additional fees may arise when it comes to the procurement of the additional evidence.
Reasons For an EB-1 Visa RFE
Requests for Evidence (RFEs) are often triggered when the USCIS requires additional documentation to establish an applicant’s eligibility for an EB-1 visa. Below are some common reasons for RFEs in the different EB-1 categories:
EB-1A
Common Trigger: Insufficient Evidence of Extraordinary Ability
How to Address: To respond effectively, you might consider submitting additional evidence. For example, the evidence might provide context that showcases the award you won was competitive and open to other renowned experts in your field,
Or, you might bolster your case of commercial successes by providing additionally testimony from renowned experts in the field who have shown that your work has truly made an impact to the field.
Detailed letters of recommendation that outline your significant contributions from known or impactful figures carry significant weight in an RFE response.
EB-1B
Common Trigger: Lack of Scholarly Publications
How to Address: In the case that an adjudicating officer suggests your scholarly publications are not sufficient, letters from academic peers acknowledging your contributions and their impact can sway the decision. You made need to provide additional context if your field is niche, which may explain why you have fewer citations. Additionally, evidence of awards or other recognition from scholarly associations can add weight to your application.
EB-1C
Common Trigger: Unclear Managerial Role
How to Address: To clarify any ambiguities, you can submit organizational charts that specify your position, detailed job descriptions outlining your managerial tasks, or letters from supervisors or colleagues verifying your role and responsibilities. Financial reports or annual reviews showing your impact on the company’s performance can also be beneficial.
Understanding these common triggers can help you preemptively address any areas where your application might be lacking, reducing the likelihood of receiving an RFE. However, each case is unique, so it may be advantageous to consult with an immigration attorney to ensure your application is as robust as possible.
EB-1 RFE Checklist
An RFE from USCIS is a formal document, typically arriving as a physical letter, although it may be sent electronically as well. It contains critical elements like your USCIS Case Number, the names of the petitioner and beneficiary, and the type of application you’ve submitted.
The letter will outline the specific information or documents you need to provide, along with detailed submission guidelines. Due to its legal significance, it’s essential to read the RFE carefully. Here is a good guide on how to approach an RFE for an EB-1 visa application
- Understand the Request
First and foremost, read the RFE carefully to understand what is being asked of you. Fully grasping what the USCIS is missing in terms of evidence is crucial to effectively move forward with your application.
- Gather the Necessary Documents
Based on the RFE, collect the necessary evidence. This can include recommendation letters, additional scholarly publications, or detailed job descriptions and organizational charts to prove managerial roles. You typically have a few months to get your new information in order, but be proactive in your efforts. The sooner you gather the necessary information, the sooner the USCIS will fully process your application.
- Address Each Point Individually
When you reply, address each query separately and methodically. Offer a cover letter summarizing how you are fulfilling each request. Include any contextual details that help to paint a fuller picture of your qualifications. Put simply, make it as easy and simple as possible for the USCIS to digest. This will expedite their processing and move you along in your application process.
- Double-Check
Before sending your response, double-check for any errors, omissions, or inconsistencies. Make sure all documents are well-organized, properly labeled, and easy to read.
- Submit Before the Deadline
Be conscious of the deadline specified in the RFE and make sure to send your response well before it. Missing the deadline can result in the full-on denial of your application. Be prompt and professional; the USCIS will take that into account.
The Outcome of an EB-1 RFE
After submitting your response to the USCIS, you can expect a few things to happen. First, you’ll likely receive an acknowledgment from USCIS, either electronically or via physical mail, confirming that your additional documents or information have been received. Then, the review process resumes as the USCIS officer evaluates the new material along with your original application.
The duration of this review can vary widely, ranging from a few weeks to several months, and is influenced by factors such as the complexity of the RFE and the current workload of the particular USCIS office handling your case.
There are three primary outcomes after responding to an RFE:
- Approval: If USCIS is satisfied with your response, your application will be approved, and you’ll receive a notice of approval.
- Additional RFE or Notice of Intent to Deny (NOID): In some instances, the USCIS might require even more information, issuing another RFE or a NOID, which means you’ll need to provide further evidence or clarification.
- Denial: If the response to the RFE is considered insufficient, USCIS could deny your application. In this unfortunate scenario, you might have options for appeal or refiling.
Frequently Asked Questions:
How long does it take to get approved after an RFE response?
USCIS generally aims to finalize its decision to your RFE response within a 60-day timeframe. Premium processing reduces this timeline 15 business days for the EB-1A and EB-1B and 45 days for EB-1C.
What is the maximum response time for an RFE
USCIS often restricts the timeline for an RFE response to 84 days. Officers may reduce the response time on a case-by-case basis
What is the success rate of EB-1A after RFE?
USCIS does not publish the success rates of EB-1s after an RFE, and providing a blanket rate of success is generally misleading. The success of an RFE response varies significantly on a case-by-case basis. It is dependent on the ability of the petitioner or legal representative to provide a comprehensive response that addresses each concern of the adjudicating officer.
The success rate also varies depending on each law firm and whether the attorney has experience handling complex cases. Complex RFEs often require hundreds of pages of evidence and legal arguments.
What is the most common reason for an EB-1A RFE?
The most common RFE reason for an EB-1A is proving that the beneficiary has sustained national or international acclaim and is one of the small percentage who have risen to the very top of the field of endeavor.
Even after clearly demonstrating the three criteria, many applicants still receive RFEs if the evidence hasn’t convinced the USCIS officer that the applicant is truly at the top of their field and has maintained that status.