Murthy Takes Action: Comments Submitted on RFE Response Timeframe

The U.S. Citizenship and Immigration Services (USCIS) has issued an interim policy memorandum that changes the timeframe for responding to various requests for evidence (RFEs). The interim memorandum became effective immediately for RFEs issued after July 7, 2011, the date of the memo. The purpose of the changes is to improve consistency in the time applicants and petitioners are allowed for responding to RFEs. As explained below, in many cases, this permits longer response times. We at the Murthy Law Firm, have submitted comments to the USCIS regarding these interim changes, as allowed under the law. The USCIS memorandum does not change any existing deadlines for RFEs that were issued before July 7, 2011.

Background: Pre-April 2007 and Post-April 2007 Timeframes

In April 2007, the USCIS changed the regulations regarding deadline timeframes appropriate for responses to RFEs. The 2007 regulatory changes eliminated a long-standing standard RFE response time of 12 weeks to a flexible time, to be determined by the adjudicator. The USCIS issued a guidance memorandum, with instructions to adjudicators on how to determine appropriate RFE deadline length. These changes were reported to MurthyDotCom and MurthyBulletin readers in our May 4, 2007 article, USCIS Regulation on Response Time for RFEs and NOIDs.

Problem: Inconsistency Within USCIS Requires Intervention

The flexibility inherent in the 2007 regulatory changes was intended to enhance efficiency and case processing times. It has given rise, however, to a different set of problems, which are inconsistencies within the adjudications process. The revisions in the July 7, 2011 policy memorandum is intended to restore consistency.

Standard 12-Week Response on Most RFEs

Under the July 7, 2011 memorandum, with the exception of change / extension of status requests filed on Form I-539, the standard time to be allowed for an RFE response is 12-weeks (84 days). The adjudicators may reduce this timeframe on a case-by-case basis, but must get permission from their supervisors in order to do so. The memorandum states that “this discretion should only be used when warranted by circumstances as determined by the adjudicator and the supervisor.”

Shorter Deadline of Thirty Days for NOIDs and I-539s

The response time for a notice of intent to deny (NOID) remains at 30-days. For change or extension of nonimmigrant status cases (Form I-539), the allowed response time is also only 30 days. The stated reason for this is the relatively short processing times required of the I-539 cases. An individual filing this commonly-used form needs to be aware of the short deadline for any RFE issued in the case. It is important to make sure the case is filed with sufficient evidence for approval, and that one is ready with any additional documents that potentially may be required. This is most critical for documents that must be obtained from abroad.

Certain Mailing Time Accommodations of 3 Days or 14 Days

The memorandum contains standard allowances for additional time for responses when the RFE is served by mail. This timeframe is three days for those who are within the United States and 14 days for applicants or petitioners residing outside of the U.S. However, we caution that it is always best not to wait until the end of the deadline to respond. It also is important to check the wording and date for response set in the RFE, carefully adhering to those restrictions.

Murthy Law Firm Requests Greater Flexibility in Certain Circumstances

Overall, we at the Murthy Law Firm support the change to the more standardized, 12-week, response time for most applications and petitions. In our comments, we pointed out to the USCIS that RFEs with short deadlines create a series of problems. Our concerns were shared with the USCIS on behalf of our clients, both companies and individuals, based on the following reasons the USCIS should consider granting more time in certain circumstances.

First, there are often delays in the transmission and receipt of RFEs. If an RFE has only a 30-day deadline, the waste of a week (and sometimes more) due to delivery problems can make filing a proper and timely response very difficult.

Second, petitioners and applicants need to obtain legal advice, and sometimes wish to seek out a second opinion when there are difficulties in their cases. This further eats into the 30-day deadline period. RFEs ask for everything from very simple documentation that should be easily at hand to very complex documentation, which may need to be obtained from overseas. The complexity is not always transparent to the adjudicator, and the applicant should be given the benefit of a longer timeframe to locate documentation in support of the case.

Third, immigration laws and procedures are, in many instances, unforgiving. If a case is denied, this often leads to status violations and numerous procedural complexities. Some of these problems can be avoided simply by allowing a longer RFE response time.

Fourth, for the above reasons, while the return to the 12-week standard is appropriate, the use of a 30-day deadline for I-539s uniformly is not appropriate. There are many situations in which individuals need to quickly file the I-539 in order to be allowed to remain in the United States. For example, many people file to change to H-4 as dependents of their spouses if they unexpectedly lose their H1B employment. In such cases, they may not have all the required documentation – particularly the marriage certificate – immediately at hand. It should be noted, too, that many people file I-539s without the assistance of attorneys, and may not be completely familiar with the documents that are needed in support of these applications.

Fifth, as explained above, a 30-day deadline does not actually give the I-539 applicant a full 30 days to respond. This is due both to mailing delays from the USCIS to the applicant as well as the response transmission time from the applicant to the USCIS. If the intent is to actually allow the applicant a full month to respond, therefore, the USCIS would need to set a timeframe of at least 45-days as a standard RFE deadline. In order to accommodate all concerns and interests, we suggested 60-days as appropriate for such a standard. This will be sufficiently fast to accommodate processing time demands, without prejudicing the applicant’s ability to demonstrate eligibility for the status change or extension requested in Form I-539.

Conclusion

As explained, the USCIS interim memorandum of July 7, 2011, is in effect immediately. Thus, those receiving RFEs may notice the longer deadlines in many instances. MurthyDotCom and MurthyBulletin readers are urged to be careful about complying with all RFE and other deadlines. Obtaining qualified legal advice is advisable when issues, such as RFEs, arise in one’s case.

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