In the world of immigration, a Request for Evidence (RFE) is a notice issued by U.S. Citizenship and Immigration Services (USCIS) requesting additional information or documentation for an immigration petition or application prior to rendering a final decision. While an RFE may be discouraging, it does not necessarily mean that an immigration petition or application will be denied, but it may lead to uncertainty and delays when applying for an employment-based visa or work authorization. With the support of your legal partner, you may address USCIS’ queries and overcome the RFE successfully.
By developing a strong employment-based visa application initially, you are more likely to avoid RFEs and achieve faster, more favorable outcomes. Moreover, even if USCIS issues an RFE, strong employment-based applications filed initially often provide robust foundations to push back on any USCIS challenge. Here are some of the common reasons for RFEs, strategies to increase your chance of approval and how to manage RFEs if you do receive one.
Common visa application issues that lead to RFEs
While RFEs can seem intimidating and create significant delays, they’re more common than you might think. For fiscal year (FY) 2023, 9.9% of H-1B applications received RFEs — as well as 31.5% of L-1A applications, 38.2% of L-1B applications, 22.6% of O applications and 17.2% of TN applications. Similar trends are evident for FY 2024.
Percentage of visa applications that received RFEs per fiscal year
|
H-1B visa applications |
L-1A visa applications |
L-1B visa applications |
O visa applications |
TN visa applications |
| FY ’24 (Oct.-June) |
8.6% |
27% |
27.8% |
19.3% |
16.2% |
| FY ’23 |
9.9% |
31.5% |
38.2% |
22.6% |
17.2% |
| FY ’22 |
9.6% |
34.4% |
40.5% |
20.7% |
17.1% |
| FY ’21 |
16.2% |
49.9% |
57.0% |
27.8% |
24.3% |
| FY ’20 |
28.7% |
51.9% |
58.4% |
30.4% |
21.6% |
| FY ’19 |
40.1% |
53.8% |
55.0% |
26.4% |
24.5% |
| FY ’18 |
37.9% |
43.9% |
48.9% |
22.8% |
28.2% |
| FY ’17 |
21.3% |
33.7% |
41.6% |
21.9% |
21.9% |
Source: USCIS Immigration and Citizenship data
During the first Trump administration, the percentage of visa applications that received RFEs climbed to 40% for H-1B, nearly 54% for L-1A, 58% for L-1B, 30% for O and 28% for TN.
Specific reasons for getting an RFE vary depending on the visa type, but there are several common issues across various applications:
- USCIS error or administrative challenge
- Incomplete or missing supporting documents, such as proof of employment, financial records or educational qualifications
- Inaccurate or incomplete responses that may cause confusion or lead to misinterpretation
- Failure to meet specific eligibility criteria for the visa type, such as educational or experience requirements
Visa application strategies to avoid RFEs
Preparation and attention to detail are crucial in avoiding unnecessary delays or denials. While you can’t guarantee a visa application won’t result in an RFE, you can take precautionary measures to reduce the risk.
Understand the specific evidentiary requirements for your case
Each immigration case is unique, so it’s important to thoroughly understand the specific evidentiary requirements for the visa type you apply for. Review USCIS guidelines and instructions to ensure you provide all necessary documentation.
For example, if the petition you are filing requires that the offered position must be a “specialty occupation,” such as an H-1B or an E-3 petition, you must provide a detailed job description as well as supporting documentation that demonstrates the complex nature of the role.
Submit complete and accurate documentation
Incomplete documentation is a common trigger for RFEs, and inaccurate documentation or information can result in the rejection of your petition, or it can greatly increase the difficulty of addressing the RFE itself.
Double-check all forms, supporting materials and evidence to ensure they are complete and up to date. Ensure you submit all required educational transcripts, diplomas and evaluations to demonstrate the foreign national’s qualifications for the position, as well as all the documentation required on behalf of the company.
By providing a comprehensive, well-organized package, you minimize the chances of receiving an RFE.
Address potential red flags proactively
USCIS officers are trained to identify potential red flags in petitions and/or applications. Take a proactive approach by addressing any potential concerns or red flags in your initial submission. Include explanatory letters, additional evidence and relevant supporting documentation to clarify any issues.
For example, one common red flag for adjudicating officers is whether or not a legitimate employee-employer relationship exists between the company and the employee. Make sure to include employment contracts, offer letters, pay stubs and tax documents to establish a clear employer-employee connection.
BAL has developed AI and automation-powered analysis tools specific to immigration policy and industry benchmarking of historical data, enabling us to identify potential high-risk areas in a case and take proactive measures to achieve swifter, more favorable decisions.
In one case, BAL’s data analysis increased a client’s overall approval rate on some immigration case types by as much as 20%.
How to respond to an RFE
If you do receive an RFE on a visa application or petition, there is still a good chance it can be approved — you just need to respond to each of the issues identified in the Service’s request promptly and thoroughly.
Follow these steps to increase your chances of approval:
- Carefully read and comprehend the RFE to determine the best course of action.
- Gather the requested evidence and information, including supporting documents, affidavits, expert opinions or other relevant material to strengthen your case. Be thorough in your research and provide comprehensive, accurate information.
- Craft a well-structured and persuasive response. Address each point raised in the RFE and provide detailed explanations or documentation. Use a professional tone and avoid unnecessary or irrelevant information. Highlight the strengths of your case.
In general, stay organized, thorough and focused on addressing the concerns raised.
Partner with BAL for better outcomes
Hiring foreign national talent can help fill skills gaps and bring specialty knowledge into your workforce, but RFEs can cause major delays, unnecessary stress and additional expenses in the work authorization process.
BAL’s attorneys work diligently to avoid RFEs and ensure a seamless process. Our innovative technology and decades of experience in employment-based immigration law have led to a lower percentage of RFEs than the national average. For example, while 9.6% of H-1B petitions resulted in RFEs for FY 2023, only 5.3% of H-1B petitions filed by BAL received RFEs in the same period.
Contact our team to learn how we can provide a smooth, error-free visa application or petition process.