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Receiving a Request for Evidence (RFE) in an EB-2 National Interest Waiver (NIW) case can be worrying, but it is more common than you think. Continue reading this article to find out how to respond to it.  

Understand the RFE and addressing common RFE issues

Carefully review the RFE notice and check it against regulations to ensure USCIS is not requesting more than required.  The RFE will outline whether one prong or all are questioned. 

  • Exceptional ability or Advanced Degree: Send additional documentation highlighting your accomplishments, such as awards, recognitions, or significant contributions to your field. Add any work certificates showing at least 5 years of progressive work experience if you do not have a Master’s degree equivalent to a U.S. degree. USCIS does not require that you hold a degree in a particular field. 
  • Substantial Merit and National Importance: Obtain updated letters from experts in your field who can attest to the national importance of your work (see our article on “Tips When Drafting Expert Letters for EB-2 National Interest Waiver (NIW) Applications”). Include additional publications, research findings, or data that demonstrate the positive impact of your work on U.S. interests. If your RFE requests more information about current projects, provide comprehensive updates showing tangible results or ongoing benefits. 
  • Well-Positioned to Advance the Proposed Endeavor: Submit updated letters from project leaders and collaborators that detail your leading, critical, or indispensable role in the endeavor if applicable. Integrate any documentation of funding received from U.S. government grants or contracts, and letters of interest from potential customers, users, or investors. Provide evidence of your specialized skills and how they directly contribute to the success of the endeavor. Also, include proof of how your work is being utilized and recognized within the field, such as citations, endorsements, or contributions to industry advancements.
  • Labor Certification Waiver: Show that your involvement is urgent and that your presence in the U.S. significantly benefits the national interest beyond what a U.S. worker could achieve.

Prepare and file your response

  • Cover letter: Prepare a detailed cover letter listing all the documents submitted in your response.
  • Petition letter: Make sure to answer all the points questioned by USCIS in the RFE and highlight the evidence that were previously provided in your original application in case USCIS misses them but do not send them again. 
  • Organize your evidence: Ensure that all evidence is well-organized, clearly labeled, and directly related to the points raised in the RFE. ATTACH THE ORIGINAL RFE LETTER ON TOP OF YOUR PACKET. 
  • File before the deadline: Be mindful of the RFE response deadline and submit your documents on time.
  • Important notes: When responding to an RFE you have three options: 1) Submit a complete response with all requested information; 2) Submit a partial response, which will be treated as a request for a decision based on the existing record; or 3) Withdraw the application or petition. You must submit all requested materials together. 
  • Consult with your attorney: Answering a RFE can be time consuming and triggering. Reach out to Donald Gross Law to discuss the best strategy for a successful application. 

FAQs and Useful Tips

  • How long does USCIS take? Although USCIS suggests calling them if you haven’t heard from them within 60 days, the time for reviewing your response and making a decision varies by case complexity and service center. If you don’t hear back after several weeks, have your attorney place an inquiry. 
  • Can I use new facts to respond to the RFE? While you can provide new evidence related to your original application, you cannot use new achievements/facts to claim eligibility for the NIW. Any major changes in your plan are not allowed. If your career has shifted significantly since your initial filing, you might need to file a new petition to reflect your updated goals. Consult with an attorney to review the evidence with you. 
  • What’s next? If approved, you will receive a notice and can file for adjustment of status if your priority date is current, or proceed with the National Visa Center if applying from abroad. If denied, you may appeal or file a motion to reopen or reconsider, depending on the situation.
  • How to get a copy of your RFE faster? If you live abroad, receiving your RFE can take longer. USCIS allows 15 days from the notice date before taking action. To get a copy faster, use USCIS’s live chat on their website. Enter your receipt number, ask for a copy of your RFE, and wait to speak with an agent.

If you need help strategizing your RFE response, contact Donald Gross Law. We offer a free 30-minute consultation to help you identify the best approach for addressing an RFE and enhancing your chances of a successful outcome.