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< Back to current issue of Immigration Daily

Positive Changes to RFE Response Times: Removing Tiered System Increases Consistency and Predictability

by Vera L. Fry

USCIS is taking a step in the right direction toward increased consistency and predictability for applicants and petitioners with changes to Request For Evidence (“RFE”) time frames. A July 7, 2011 interim memo posted for comment proposes to increase the amount of time USCIS officers may provide an applicant or petitioner to respond to a RFE. It also limits adjudicator discretion to reduce the response time from the standard time frames. The changes would eliminate the tiered RFE response time currently in place.

The standard time frames listed in Appendix 10-9 of the Adjudicators Field Manual (“AFM”) are amended to include:

  • A standard time frame of 30 days for Form I-539; and
  • A standard time frame of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

For RFEs served by mail, response times will be extended 3 days for U.S. mailing and 14 days for international mailing.

Maximum Time Now Standard, Reductions Require Concurrence
Under the new policy, the 12 week RFE response time will be standard. And, adjudicators may reduce these time frames on a case by case base only after supervisory approval and only when circumstances warrant as determined by the adjudicator and the supervisor. There will be no change in the maximum response period –extensions of time to submit evidence beyond the 12 week limit for RFEs or the 30-day period for a Notice of Intent to Deny (“NOIDs”) are not permitted.

Current System Inconsistent
Prior to the current system, USCIS rules allowed a standard twelve week response time for RFEs. Effective June 18, 2007, the agency eliminated this rule and replaced it with the current “flexible” or tiered approach. However, the current rule has not achieved the agency goal of increased flexibility.

Practically speaking, the rule has been problematic. Despite the goal of flexibility, adjudicators now typically allow only 30 days for responses. Factoring in a 5 to 7 day USCIS processing time, this leaves the petitioner/beneficiary approximately three weeks to gather requested documentation, prepare and submit the RFE response.

Additionally, response time frames generally are not tailored to the scope of the request. For instance, an RFE requesting one item of evidence and an RFE requesting ten items of evidence may both provide a 30 days response time. And, immigration practitioners note that there appears to be a lack of uniformity in RFE response times for H-1B and L-1A/Bs between the California and Vermont Service Centers.

The USCIS shift back to a more general time frame reflects the agency’s goal of greater uniformity in policy design and implementation. According to the agency, this new policy memorandum “seeks to provide greater consistency in the issuance of RFEs by amending the standard timeframes [sic] USCIS will provide for responding to RFEs and by limiting the use of discretion to reduce the response time from the standard timeframes [sic].” The agency posted this memo (PM-602-0040) on July 13, 2011. The comment period ends July 27, 2011.


About The Author

Vera L. Fry is a Partner at Goel & Anderson. She advises clients on complex legal matters involving all of the major U.S. immigrant and nonimmigrant visa classifications including PERM, H-1B, L-1A, L-1B, E-1, E-2, and B-1 issues. Vera began practicing immigration law in 1999 when she was selected to be an Honor Law Graduate in the highly competitive U.S. Department of Justice Attorney General's Honors Program. She served as Assistant District Counsel with the former Immigration and Naturalization Service, advising operational units and litigating a wide variety of asylum, removal and deportation cases in California and Arizona immigration courts. Subsequently, she lived overseas in Japan for eight years, serving as the U.S. immigration law consultant to a Japanese law firm. Vera later opened and operated her own Japanese registered foreign law office as a registered foreign attorney (gaikokuhou jimu bengoshi) and assisted Japanese companies with their business immigration needs. Additionally, she taught U.S. immigration law in Japan at the University of the Ryukyus, Graduate School of Law. Vera also studied commercial dispute resolution at the Law Society of Hong Kong and successfully competed in the Hong Kong International Arbitration Centre, Mediator Accreditation Process, to be certified as a mediator. She can be contacted via email at vera.fry@goellaw.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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