One Minute Read
RFEs sometimes contain factual errors, mischaracterizations of the petitioner’s field, incorrect summaries of submitted evidence, and demands for evidence that the law does not require. Knowing how to identify these problems and correct them professionally is one of the most important skills a self-petitioner can develop. This article teaches you how to read your RFE critically and respond to its errors without becoming adversarial.
RFE Errors Are More Common Than You Might Expect
A Request for Evidence is not an infallible legal document. It is a letter written by a human adjudicator who may be reviewing dozens of cases simultaneously, who may not be a specialist in your field, and who may occasionally misread evidence, mischaracterize your work, or apply the wrong legal standard. When this happens, your RFE response must do two things: provide the additional evidence USCIS has requested, and correct any errors in the RFE’s characterization of your case.
Common types of errors in RFEs include: misidentifying the petitioner’s field or occupation; describing the petitioner’s proposed endeavor inaccurately or too narrowly; ignoring or mischaracterizing evidence that was submitted with the original petition; applying novel evidentiary requirements that are not found in Dhanasar or the Policy Manual; and citing language from Dhanasar in ways that misapply it to the petitioner’s specific circumstances.
None of these errors, by themselves, mean that USCIS is acting in bad faith. They reflect the difficulty of reviewing complex professional petitions across a wide range of fields and disciplines. But they do mean that your RFE response cannot simply accept USCIS’s characterization of your case as the accurate starting point. You must read your RFE carefully, identify any errors or mischaracterizations, and address them explicitly in your response.
How to Read Your RFE Critically
Start by reading your RFE against your original filing. Place your petition letter next to the RFE and go through the RFE’s description of your case point by point. Did the RFE accurately describe your proposed endeavor? Did it accurately summarize the evidence you submitted? Did it correctly identify your field, your job title, your educational background? Did it cite evidence you submitted but characterize it differently than you intended?
Pay particular attention to how the RFE describes your proposed endeavor. If it describes your work in terms that are too narrow, too broad, or simply inaccurate, that mischaracterization may have infected the entire analysis that follows. An RFE that evaluates your petition against the wrong proposed endeavor is essentially evaluating a different petition than the one you filed. Correcting this mischaracterization must be the first substantive step in your response.
Also look for whether the RFE ignores evidence you submitted. If the RFE describes a deficiency that your original filing actually addressed — but does not acknowledge that you addressed it — your response should note this clearly. You are not attacking the officer; you are pointing out that the analysis in the RFE appears not to account for evidence that was included in the original submission.
Identifying Novel Evidentiary Requirements
One of the most common and important types of RFE error is the imposition of novel evidentiary requirements — demands for evidence that Dhanasar and the Policy Manual do not actually require. The clearest example is an RFE that says the petitioner failed to demonstrate Prong 2 because they do not have patents, publications, media coverage, or awards. As discussed elsewhere in this course, the Policy Manual explicitly states that these items are not required and that no single type of evidence is sufficient by itself.
When your RFE appears to require evidence types that are not mandated by law, your response should include the following: first, cite the relevant Policy Manual language confirming that the listed evidence types are examples, not requirements. Second, explain that the standard is whether you are well positioned to advance the proposed endeavor, evaluated holistically across all relevant evidence. Third, provide additional evidence of the types you do have, organized to directly address the Prong 2 factors that the Policy Manual actually sets out.
Do this in a respectful, lawyerly tone. You are not arguing that the officer is wrong to want more evidence — you are clarifying the correct framework within which that evidence should be evaluated. A response that says “respectfully, the Policy Manual confirms that the evidence listed in the RFE is not required” is not adversarial; it is legally accurate and professionally appropriate.
Correcting Field Misidentifications
Occasionally, an RFE will misidentify the petitioner’s field or specialty. This is particularly likely when the petitioner’s background spans multiple disciplines, when their job title does not perfectly reflect their specialty, or when the adjudicator does not have expertise in the relevant field. An RFE that asks a software quality assurance professional to demonstrate expertise in an entirely different discipline has made a fundamental error that must be corrected before any substantive response to the merits is possible.
If your RFE contains a field misidentification, open your response by addressing it directly and respectfully. State clearly and early in your response that the RFE appears to have identified your specialty incorrectly, explain what your actual specialty is, and point to the specific evidence in your original filing that establishes your correct field. Then proceed with the rest of your response based on the correct field characterization.
Correcting a field misidentification is not optional. If you respond to an RFE without addressing a field error, you risk the adjudicator evaluating your response against the wrong specialty. All of the specific evidence, citations, and arguments in your response need to be evaluated in the context of your actual field.
The Preponderance Standard and Why It Protects You
One final point that is worth making explicit in any RFE response is the applicable standard of proof. The Dhanasar decision confirmed that NIW petitions are evaluated under the preponderance of the evidence standard — meaning that USCIS must find it more likely than not that you satisfy each element. As the U.S. Supreme Court held in INS v. Cardoza-Fonseca, this standard requires only a greater than 50% probability of truth.
This matters in the context of RFE errors because it means USCIS must evaluate the totality of your evidence, not just the categories of evidence it identified as missing. If your original filing included evidence that, taken together, made it more likely than not that you satisfy each prong, then an RFE response that provides additional evidence should be evaluated holistically against that total record.
State the applicable standard explicitly in your RFE response. Note that the preponderance standard applies, that you believe the totality of the evidence submitted with the original petition and with this response establishes that each element is more likely than not satisfied, and that you respectfully request USCIS evaluate that evidence holistically and in accordance with the Dhanasar framework and the Policy Manual. This framing is legally correct, professionally appropriate, and sets the right expectations for how your response should be evaluated.
References and Further Reading
- Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) — https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20Holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2016/DEC012016_01B5203.pdf
- USCIS Policy Manual, Volume 6, Part F, Chapter 5 — https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
- Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) — Preponderance of Evidence — https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20Holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/jan052010_01b5203.pdf
- INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) — Preponderance Standard — https://supreme.justia.com/cases/federal/us/480/421/
- 8 CFR 103.2(b)(8) — RFE Response Requirements — https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-103/section-103.2
- USCIS — How to Respond to a Request for Evidence — https://www.uscis.gov/forms/filing-guidance/responding-to-uscis-requests
