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At the AILA (American Immigration Lawyer’s Association) conference in June 2011 in San Diego, one of the big complaints from the members was that RFE’s (Request for Evidence) were being sent with very short (usually 30 days) response time. In general, the 30 days starts ticking when the letter is generated at USCIS (immigration service) and if it is coming from California to New York, it could take up to a week to get to the client or the attorney. By that time there is only 3 weeks left to respond to a 5 page request for evidence, that in our office, usually takes at least 3 full days of staff work to put together a 20-30 page response and 300 pages of evidence. This has been a very difficult task in the face of increased RFE’s, more lengthy questions, and generally, a stricter attitude from USCIS.

In response to the complaints, 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 new rule would be as follows:

  • 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.

In other words, 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.

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.

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 USCIS will provide for responding to RFEs and by limiting the use of discretion to reduce the response time from the standard timeframes. The agency posted this memo on July 13, 2011. The comment period ends July 27, 2011 so by the time this article is published, hopefully, we will again see 12 week response times again.

September 2011