USCIS Issues a Flood of RFEs on Pending I-485 Applications

Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based primary Form I-485, Application to Adjust Status, cases.    Our office has been receiving such RFEs and we have been hearing from readers and clients who have also been affected by this large-scale RFE event.    Unlike the similar mass-RFE event from June 2013, this time the RFEs seem to be more accurately drafted, do not include dependents and include request for renewed Form I-693 medical exam documents.

Similar or Identical I-485 RFEs

It appears that the majority (if not all) of these RFEs were issued by the Texas Service Center and most appear to be for EB-2 India applicants.    In terms of substance, the RFEs appear to be almost identical and seek information and clarification on a few points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE; (2) a current (and original) employment verification letter from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer; and (3) request for updated I-693 medical exam form.

Maintaining Employment Authorization

The RFE requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

Original Employment Verification Letter

The RFE also asks for an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   The EVL should be in original, on employer letterhead, and should confirm that the job offer described in the I-140 petition exists (for sponsoring employers).   In situations where the I-485 applicant has ported their I-485 to a new employer (or to the same employer but on a different position) pursuant to AC21, the RFE seeks an EVL from the new employer confirming that the new position is same or similar to the position noted in the I-140 petition.

As mentioned above, the EVL should be in original, currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Updated I-693 Medical Exams

Finally, the RFEs are seeking an updated set of I-693 medical exam forms, completed by a designated Civil Surgeon, and in a sealed envelope.   The reason the medical exams are included in this set of RFEs is that USCIS not automatically renew the validity of the I-693 medical exams this year and, as a result, a number (or all) relevant I-693 medical exam forms expired because they were valid for only one year.

As a background, USCIS had a policy of automatically renewing the validity of timely-filed I-693 medical exams.  However, as of this year, USCIS did not renew this policy, resulting in a number of I-693 medical exams expiring.   As a result, USCIS is seeking a new Form I-693 as part of this RFE wave.

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

There is much speculation as to what is the USCIS intent in generating so many RFEs in such a short period of time without, in many cases, careful consideration of the facts of a specific case.    We will not speculate since and we do not yet have an official position from USCIS.    For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations for forward movement in EB-2 India in the next few months), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

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