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How to Respond to Erroneous Requests in RFE?

According to CIS procedure, issuance of Request for Evidence (RFE) is appropriate when a particular piece or pieces of necessary evidence are missing.  In reality, however, while some RFE’s are properly issued, many include erroneous requests due to the adjudicator’s mistake of law and/or mistake of fact. In this article, we provide two examples in regard to proper responses to erroneously issued RFE’s.

 1. Erroneous Request Arising from Mistake of Law

In one Eb-1A RFE we recently received, we successfully rebutted the adjudicator’s assertion  arising from mistake of law. The adjudicator asserts, “It must be noted, at the outset, that by requesting the classification sought, the beneficiary must be among the top 1% of scientists currently operating within this field…The scientists who have written in support of the beneficiary have not claimed that such is the case.” Accordingly the RFE requests that the petitioner submits evidence to show that he is among the top 1% of scientists in his field.

Apparently, “top 1%” was the adjudicator’s misinterpretation of law. In response to this request, we pointed out that the “1%” interpretation was unprecedented, radically
restrictive, and was not supported by any laws, administrative regulations, AAO decisions, or judicial rulings.  

To support our argument, we presented the original text of pertinent part of the Immigration and Naturalization Act (INA). Section 203(b) of the INA requires that “the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.”

We also presented that 8 C.F.R. §204.5(h)(2) interprets “extraordinary ability” as a level of expertise indicating that the individual is one of that “small percentage who have risen to the very top of the field of endeavor.”

Based on the INA and administrative regulation, we argued that in terms of plain language as well as statistical significance, it was inappropriate to equate “small percentage” to “1%”. We thus concluded that the adjudicator’s interpretation was in clear contradiction to well established laws and administrative regulations.

   2. Erroneous Request Arising from Mistake of Fact

When a RFE was erroneously issued due to the adjudicator’s mistake of fact, the best response is to point out in a respectful manner that the adjudicator made a factual mistake.

For example, in the same RFE noted above, the adjudicator asserted, “According to the references, the [Petitioner’s] work is groundbreaking. However, they all state that the work has the potential to make a significant impact on the industry. None of the references indicate that the beneficiary has made an original scientific contribution of major significance which has already impacted the industry.”

Apparently the adjudicator attempted to discredit the experts’ testimonies concerning the influence of petitioner/beneficiary’s original contribution of major significance. The adjudicator, however, made a factual mistake. In fact, all references in their letters discussed the petitioner/beneficiary’s contributions that have already impacted his field of research.

In our response to the RFE, we pointed out that the adjudicator’s assertion was not supported by the evidence submitted with the initial petition. In the reference letters,
while experts discussed the impact of the petitioner/beneficiary’s work on the future development of his field, they also abundantly discussed his specific original contribution of major significance which has already impacted the field as a whole.

To support our claim, we quoted from the reference letters that clearly contradicted the adjudicator’s assertion. For example, one expert testified that “[the petitioner’s] work already has had a significant impact in this crucial area of high-technology.” Quotes from another expert indicated that the petitioner’s innovation “has solved a long standing problem that had puzzled the industry for decades.”  

The bottom line: when the adjudicator made a factual mistake that may lead to distortion of the truth, the petitioner should guide the adjudicator to where the truth stands. We believe that when it becomes clear that a factual mistake was made in the RFE, a reasonable adjudicator should correct his/her mistake and approve the case if the petitioner is otherwise qualified. After all, the whole system is based on the assumption of “reasonable person” although from time to time we have to deal with unreasonable adjudicators.  

In the above case, on which this article is based, our response to RFE was received by CIS on July 9, 2007, and the case was approved on July 20, 2007.

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