Influx of RFEs on Pending I-485s

The U.S. Citizenship and Immigration Services (USCIS) has recently issued a large volume of identical requests for evidence (RFEs) on pending applications to adjust status (form I-485) cases. The RFEs appear to be an effort to check key issues in long-pending employment-based I-485s.

RFEs on EB3s and EB2s Likely to Become Current

All of the identical RFEs were issued by the Texas Service Center (TSC). These RFEs have been issued for employment-based (EB) cases in both the third preference (EB3) and the second preference (EB2) categories. The EB3 cases have priority dates that are current – or will become current in July 2013. The EB2 cases generally have priority dates that are expected to become current in August and/or September, based on recent U.S. Department of State (DOS) predictions. More information on the predictions of EB2 India cutoff date movement is provided in the NewsBrief, July 2013 Visa Bulletin: EB2 Cutoff Date Movement Predictions (14.Jun.2013).

RFEs Intended for Principals, but Include Some Derivatives

As mentioned above, all of these RFEs use identical, boilerplate language. Each RFE states that a review of the I-485 adjustment application indicates that the individual is an employment-based principal applicant. However, some of the RFEs have actually been issued on cases filed by derivative (dependent) spouses. It seems likely that the RFEs issued for dependent cases were sent by the USCIS in error.

Response Required, Even if RFE Issued in Error

One issue that may cause concern for some derivatives is that the RFEs request proof of employment authorization and proof of a valid job offer. A derivative family member in an EB case is not required to be employed or to have an existing job offer. Of course, if the derivative family member chooses to work, the individual must have authorization to do so.

As explained on MurthyDotCom in Improper RFEs and Suggestions to Respond to USCIS (10.Jun.2013), a response must be filed with the USCIS, even if it is clear that the RFE was issued in error. In most situations, such a derivative should be able to submit a proper clarification regarding the errors within the RFE, and an explanation as to why the individual remains eligible for adjustment of status.

Continuous Employment Authorization

The RFEs ask for proof of continuous employment authorization in the United States from the date the I-485 was filed to the present. The reality, however, is that work authorization is only required during any period/s of time the individual performed work in the United States. There are, therefore, many situations in which a gap in work authorization is not actually a cause for concern.

Unauthorized Employment

If an individual who received one of these RFEs has ever been employed without authorization in the United States, this can be problematic. Even derivatives who have chosen to work must be prepared to provide the USCIS with a substantive response on this issue in order to demonstrate eligibility for I-485 approval. Failure to adequately address this issue generally will lead to denial of the I-485.

Although the USCIS takes unauthorized employment seriously, those who fall into this category should not automatically assume that salvaging their cases would be impossible. For instance, the MurthyDotCom article, Green Card Possible After Status Violation: 245(k) Benefit, provides information on one provision that may protect some of the applicants who find themselves in this predicament. Other viable options may exist, as well, depending upon the circumstances. However, one should immediately consult with a qualified attorney to discuss the matter in greater detail.

Proof of Valid Full-Time Job Offer

The second item addressed in these RFEs is proof of a current full-time job offer. Each RFE asks for a letter from the I-140 petitioning employer, verifying that the job offer to the applicant still exists. In the alternative, the RFE states that a job offer letter from a different employer may be acceptable, pursuant to the AC21 portability provisions.

For some individuals, this will be straightforward. A derivative applicant, for example, is not required to have a job offer, as mentioned above. An applicant who remains in the same position with the petitioning employer also, typically, will be able to provide a satisfactory letter to resolve this issue. However, for a principal applicant who does not have a proper job-offer, this can be grounds for denial of the I-485. Speaking with an attorney to determine available options is strongly suggested.

Others will be faced with a choice as to whether they wish to remain with the original employer / sponsor or whether they wish to make a job change under the AC21 green card portability provisions. The need to make this choice is particularly important in light of the expected forward movement of the EB2 cutoff dates.  This will be the topic of an upcoming MurthyDotCom article.

Importance of Prompt Response to RFE

These RFEs generally allow for a response time of 87 days from the date of issuance. However, the case essentially remains on hold until the USCIS receives a response. Thus, most applicants, particularly those with current priority dates or priority dates that are anticipated as becoming current, must respond promptly, if possible, to avoid the risk of date retrogression and of I-485s remaining stuck in limbo indefinitely.

Conclusion

The influx of I-485 RFEs indicates that the USCIS is gearing up in anticipation of the ability to finalize some long-pending I-485 cases. Individuals who receive such RFEs may need guidance with respect to some of the issues and concerns discussed here for our readers. Murthy Law Firm attorneys are available for guidance, consultation, and assistance in filing a response to an RFE.

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