USCIS Issues a Multitude of RFEs on Pending I-485 Applications – Mid-2017 Edition

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 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.    We have seen similar RFE flood waves in the past and many EB-2 and EB-3 India applicants may have seen two or even three such RFEs.    Like previous RFE waves in the past, USCIS is generally seeking updated medicals, in addition to employment verification documents from the sponsoring employer.

Similar or Identical I-485 RFEs

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 or I-485 Supplement J form 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.   In few cases, especially when the I-485 has been pending for more than five years, we have also seen USCIS request updated Form G-325, Biographic Information.

Who Is Getting (Or Should Expect) I-485 RFE?

While there are many I-485 RFEs which are issued for other reasons, the trend we are noticing is that USCIS is issuing I-485 RFEs on pending I-485 applications filed by Indian nationals under the EB-2 and EB-3 preference categories.   The reason is that as many EB-2 and EB-3 India cutoff dates are advancing, USCIS is preparing I-485 applications with approaching priority dates for final review and approval when the priority date becomes current over the following months.

Expiring I-693 Medicals Triggers I-485 RFE

The medical exam portions of the RFEs are triggered by two separate factors.

First, on June 1, 2014, USCIS amended its policy with respect to the continuing validity of the I-693, Medical Exam.   As a result of this change in policy, I-693 medical exams are valid for only one year and USCIS cannot approve a pending I-485 adjustment of status application without a valid I-693 medical exam.    As the cutoff dates for many employment-based categories advance, especially EB-2 India, USCIS adjudicators have to request an updated set of medical exam (from each I-485 applicant) in order to continue to keep the I-485 case preadjudicated and ready for approval once a visa number becomes available.

Second, on August 1, 2016, USCIS also amended its policy with respect to gonorrhea testing and now all applicants who are 15 years or older must include this testing.   Because this requirement was not well alerted, many medical exams completed in mid- or late-2016 did not include this testing.

Many of our EB-2 and EB-3 India readers and clients have already experienced two, even three, such I-485 RFE “waves” and are generally not surprised or alarmed by the fact this kind of I-485 is issued.    But we urge caution in approaching the I-485 RFE response, especially when preparing any remaining RFE items – most often employment authorization and employment verification.

Maintaining Employment Authorization

In addition to asking for updated medicals, the RFE sometimes 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.

I-485 Supplement J, Confirmation of Bona Fide Job Offer or Employment Verification Letter

Starting January 2017, USCIS has created a new and separate form which aims to streamline the process of verifying intended permanent employment for I-485 cases.   I-485 Supplement J is the form now required by USCIS to confirm an offer of permanent employment and is now requested during an initial I-485 filing OR during I-485 RFE.

Previously, USCIS used to require an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   Presently, USCIS expects to see the I-485 Supplement J form completed and signed by both the applicant and the sponsoring (current or future) employers.     The form should be 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).

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

For many applicants, however, who may expect to see their priority become current over the next two to three 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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