Requests For Evidence (RFE) & Immigration Appeals

                         

Applying for immigration benefits like citizenship or permanent residence can get very stressful. However, the most nerve-wracking part of the immigration process is the waiting. You cross your fingers and hope your petition gets approved, and that pit in your stomach keeps you on edge with anxiety. For most applicants, requests for immigration benefits are life-changing and denial could mean removal from the United States.

There are times when the much anticipated decision, however, does not come. Instead, you may receive a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services (USCIS). This is a request for additional information that will help them come to a decision on your case. There may be something that is not clear or there may be some documents that were not submitted. Whatever the case, this does not necessarily mean that the petition will be denied. It means that USCIS needs more information so they can decide. 

It does mean that they’re not sure about whether or not your petition should be approved. With this in mind, it is very important that you  comply with their Request for Evidence to prove your eligibility for the specific petition you applied for. It may be your last chance to make sure that the USCIS officials are convinced of your qualifications. The RFE should have a deadline listed on it so make sure that you submit the requested information on or before that date. Failure to do so would mean the denial of your application.

Why Would USCIS Send A Request For Evidence?

There are several reasons that the USCIS may have for requesting additional information or evidence. Here are some examples of common reasons, depending on what type of application you submitted and your present status:

• Missing Documentary Evidence

If the documents you submitted the first time are incomplete or are not enough to prove eligibility, the USCIS will likely send an RFE. This is not a bad thing, because you actually get a chance to sort out the paperwork and submit the missing documents or evidence rather than be denied immediately.

Sometimes they request copies of your passport. This may be because you failed to submit copies of all pages, including the blank pages. Other documents that may be requested by the USCIS as additional evidence are divorce decree, long-form birth certificate, vaccination record, tax returns, and other financial documents. 

• No Proof Of Lawful Entry

If you are applying for permanent residence, it is necessary that you prove that you entered the country legally. Failure to submit the necessary documentation that supports this claim will lead to an RFE. 

Proof of legal entry into the country may include a copy of your passport that was stamped by the U.S Customs and Border Protection or CBP. In the past the CBP provided foreigners with a paper I-94 form that contains their travel records. Now these travel records are readily accessible online and show your arrival and departure record. 

• Lack Of Proof Of Financial Capacity 

If you are applying for marriage-based permanent residence, you need to prove that your U.S. citizen or green card holder spouse who is sponsoring you has the financial capability to support you in the country. If you fail to provide sufficient proof of capacity, the USCIS will ask for additional evidence. 

In case that your spouse really can’t provide support, he or she can look for a co-sponsor, like a family member, who will agree to support you both in the United States when you get your green card.

The law requires that the sponsor spouse must have a minimum income of 125% of the Federal Poverty Guidelines. You can also use your own income to supplement your spouse’s income so together you meet the minimum income requirement. This applies only if you can prove that your income source will remain the same even after the green card is obtained. This is to prevent scrupulous individuals from getting temporary jobs just to comply with the USCIS requirement.

• No Document Translations

If your documents are in another language (not English), you need to submit a certified translation done by a third person. The certification is a written declaration made by the translator stating that he or she accurately translated your document. 

• Criminal Records

If USCIS finds that you have a criminal record and you failed to disclose it in your application, you will be given the chance to submit copies of these records. 

Other types of evidence may be requested, depending on the deficiencies in your application. The important thing to remember here is that you need to convince them that you are eligible for the immigration benefit that you are applying for.

What Happens If Your Petition For Immigration Is Denied? 

If you  do receive a decision and it bears the dreaded “DENIED” all hope is not lost. You can still appeal the denial for many immigration applications. An application for citizenship may be appealed, for example. 

Appeal With The Administrative Appeals Office 

Usually, immigration applications that are denied are appealed with the Administrative Appeals Office (AAO). They cover appeals of approximately 50 immigration application categories. They receive appeals of unfavorable decisions on petitions for immigration benefits.

It is the duty of the AAO to review appeals to make sure that immigration law and policy are accurately interpreted and applied. Most of the time, the AAO’s decisions are non-precedent, meaning, they can’t be used as a basis for deciding future cases. This is because the application of current immingration laws is dependent on the unique circumstances in each case. 

However, there are instances when their decisions can be precedent-setting, after they are reviewed by the Attorney General. As mentioned before, not all denied immigrant benefit requests may be appealed. Other times the appeal may be under the jurisdiction of the Board of Immigration Appeals (BIA). 

The AAO specifically handles appeals under the following categories and form numbers:

1. Almost all employment-based immigrant and nonimmigrant visa petitions (Forms I-129 and I-140)
2. Investor immigrant petitions (Form I-526)
3. Temporary Protected Status applications (Form I-821)
4. Fiancé(e) visa petitions (Form I-129F)
5. Waiver of ground of inadmissibility applications (Form I-601)
6. Applications for permission to reapply after removal (Form I-212)
7. Some special immigrant petitions (Form I-160, except appeals by widowers, which are within the scope of the BIA)
8. Orphan applications (Forms I-600 and I-600A)
9. T and U visa petitions. The T visa applications are for nonimmigrant visas for victims of human trafficking. U visa petitions are for nonimmigrant visas for victims of certain crimes. 
10. Applications to Preserve Residence for Naturalization Purposes (N-470). This petition is for a lawful permanent resident who has to leave the U.S. for a year or more for work purposes, but wants to preserve their status as immigrant in order to qualify for naturalization. 
11. ICE ruling on breach of surety bond
12. Appeals of USCIS revocation of formerly approved petitions.

Appeals with the AAO must be filed using Form I-290B – Notice of Appeal or Motion within 30 days after personal service of the decision or 33 days for service by mail. 

Appeals With The Board Of Immigration Appeals

The Board of Immigration Appeals is the highest office that handles the interpretation and application of U.S. laws on immigration. It is composed of 23 appellate immigration judges, one of whom is the chief appellate immigration judge and one or two deputies. 

The BIA has jurisdiction over decisions rendered by immigration judges and the district directors of the Department Of Homeland Security (DHS) on certain immigration cases. 

An appeal of a final decision of an immigration judge  has to be filed within 30 days of the judge’s decision. Failure to file the appeal on time will result in its dismissal and the immigration judge’s decision is retained. 

The decision of the BIA is binding except when it is modified or reversed by the Attorney General or the federal courts.

What To Do If The BIA Issues A Denial 

In some cases, a denial of certain immigration cases may be appealed with the federal appeals court. An example of a case that may be appealed in the federal Court of Appeals is a final order of removal. The appeal must be filed within 30 days after the BIA’s decision. However, there is no automatic stay of removal and the appellant’s attorney must file a stay of removal while the appeal is pending. 

Seek Help For Immigration Appeals

An application for immigration benefits can be a stressful and time-consuming process. It is also very difficult to navigate alone. Imagine how much more difficult it is to deal with an appeal of a denied petition. If your application for immigration benefits has been denied, secure the assistance of an experienced immigration lawyer. Better yet, give your application a better chance at success by hiring an immigration attorney the moment you decide to immigrate. This will save you months of stress and difficulties and help you have a more likely chance at getting the immigration benefits you seek. 

Requests For Evidence (RFE) From The Bureau Of U.S. Citizenship & Immigration Services (USCIS)

Instead of receiving a decision on your application or petition from the Bureau of U.S. Citizenship and Immigration Services (USCIS), you may receive a Request for Evidence (RFE). USCIS usually issues an RFE to request more information if something is not clear about your case, you failed to include the proper supporting documentation when you filed your application or petition, or the agency needs updated information regarding an aspect of your case.

Although an RFE does not mean that USCIS is about to deny your case, it does mean that the agency is unsure about whether you meet the requirements for the immigration benefit you are applying for. Your response to the RFE is your last chance to convince the agency that you meet the eligibility requirements for the particular application or petition you have filed. You must file your response to the RFE by the date listed on the request, or your application or petition will be denied.

Appealing The Denial Of An Immigration Petition Or Application To The Administrative Appeals Office (AAO)

You can appeal the denial of many petitions and applications for immigration benefits. For example, you may appeal the denial of your citizenship application. Although there is no appeal to the denial of an application for adjustment of status, it may be possible to file a Motion to Reopen and Reconsider the decision.

Typically appeals of denials of immigration applications are made to the Administrative Appeals Office (AAO). The AAO is responsible for the appeals of more than 40 categories of immigration petitions and applications. There are strict deadlines to file an appeal. If you do not file your appeal by the deadline, you will lose your right to appeal the denial of your application.

Appealing The Decision Of An Immigration Judge To The Board Of Immigration Appeals (BIA)

Final orders of an Immigration Judge may be appealed to the Board of Immigration Appeals (BIA). The BIA is the government agency responsible for reviewing decisions by Immigration Judges and interpreting immigration laws.

To appeal the final decision of an Immigration Judge, you must file a Notice of Appeal with the BIA within 30 days of the Immigration Judge’s decision. This means that the Notice of Appeal must be received by the BIA by the 30th day. If an appeal is not filed on time, the appeal will be dismissed, and the Immigration Judge’s decision will stand. This is true even if the BIA receives the appeal one day late. If an Immigration Judge has denied your immigration case and you want to appeal, you should contact an Austin immigration attorney as soon as possible.

Under certain circumstances, you may ask the Immigration Judge or the BIA to review the case again. A Motion to Reopen or Reconsider is filed with the court that last heard the case.

A Motion to Reopen may be granted if you can show one of the following:

• New facts or evidence.
• Changed country conditions.
• Lack of notice.
• Exceptional circumstances.
• Ineffective assistance of counsel (your lawyer did a bad job).
• A Motion to Reconsider asks the court to reconsider the case in light of new case law or changes in the law.

Appealing Immigration Cases To A Federal Appeals Court

If the BIA rules in favor of the government, it may be possible to appeal your immigration case to a federal appeals court. Appealing to a federal appeals court requires filing a Petition for Review. In certain circumstances, asylum applicants may be able to file a Petition for Review. Also, persons claiming that their criminal conviction is not a removable offense or that the government did not prove their alienage may file a Petition for Review. Persons ordered removed before October 30, 1996 may be able to Petition for Review for other reasons.

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