USCIS Issues Erroneous RFEs on FB2A Petitions

The American Immigration Lawyers Association (AILA) has alerted stakeholders of the issuance of inappropriate requests for evidence (RFEs) by the U.S. Citizenship and Immigration Services (USCIS) National Benefits Center (NBC) in connection with family-based, second preference “A” (FB2A) petitions. These RFEs are asking petitioning family members to submit proof that they are U.S. citizens, even though this category is reserved for eligible family members being sponsored by permanent residents, not citizens.

Background: FB2A Developments

The FB2A category applies to spouses and (unmarried, minor) children of U.S. lawful permanent residents. This historically backlogged category became “current” for the first time ever in the August 2013 Visa Bulletin. The category remained current until September 30, 2013. The cutoff date retrogressed slightly in October, 2013 and, as of the December 2013 Visa Bulletin, has a cutoff date of September 1, 2013 for Mexico, and September 8 for all other countries of chargeability.

RFEs Ask for Proof of Citizenship of the Petitioner

The NBC has issued RFEs in pending FB2A I-130 petitions that ask for proof of the petitioner’s U.S. citizenship. This is an incorrect request, since FB2A petitioners are lawful permanent residents. The NBC is working to resolve the source of the error.

Best Practice: Respond to RFEs

As explained in the MurthyDotCom NewsBrief, Improper RFEs and Suggestions to Respond to USCIS (10.Jun.2013), even if an RFE has been issued in error, it should not be ignored. Except in rare cases, in which the USCIS subsequently issues written notice to disregard a previously issued RFE, the petitioner must file a response. Obviously, a lawful permanent resident petitioner will not be able to provide proof of U.S. citizenship; but, the individual can briefly respond to the RFE with a short explanation of the type of case filed and the legal requirements for serving as a petitioner in an FB2A petition.

Conclusion

Given the volume of cases processed by the USCIS, mistakes such as this do happen from time to time. However, one should not assume an RFE has been issued in error solely based on the petitioner’s understanding of the law; nor should one panic upon receiving an RFE that asks for unattainable evidence. It is advisable, rather, for one to discuss the matter with a qualified professional. Questions regarding RFEs related to pending immigrant petitions should be addressed in a scheduled consultation with an attorney at the Murthy Law Firm.

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