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 and derivative Form I-485, Application to Adjust Status. Most of the RFEs were issued and dated June 13th or June 14th and hardcopies are starting to be delivered to individual applicants and to their attorneys. Our office has also started receiving such documents and we have been receiving numerous inquiries with respect to this massive RFE event.
Identical I-485 RFEs
It appears that the majority 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 two 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 and (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. Please see a redacted sample of the RFE template issued.
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).
Derivative Dependents Issued Identical RFEs
What is somewhat troubling is that USCIS has issued RFEs with identical language to derivative dependents. Specifically, dependents’ RFEs include the phrase “You are an Employment-Based Principal Applicant” which is plainly incorrect for derivative beneficiaries.
Also, the RFE for derivatives asks for evidence in the same two areas as primary applicants without any consideration that such documents or information may not be applicable for derivative family member applicants. For example, a derivative applicant’s RFE asks for proof of continued employment authorization since the filing of I-485. Many derivative applicants, especially children, do not seek and obtain EAD work permits as part of their I-485 application. In fact, whether or not a derivative applicant is employed (unless on status permitting employment such as H-1B or L-1), is not a factor in the I-485 adjudication.
The RFE for derivative applicants also asks for a letter from “your petitioning (Form I-140) employer.” Derivative I-485 applicants, by definition, do not have a petitioning I-140 sponsor employer. It is unclear what is USCIS’s motive — whether they seek such a letter from the primary applicant’s sponsoring employer, or simply that they reused the template without regard to a specific case’s parameters.
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.
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), 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.