How to Respond to Erroneous Requests in RFE?
Z. Zac Liu, Esq., Kellie Pai, Esq.
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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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University School
of Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院
执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍
多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员
和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才
（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了
丰富的经验。读者若有移民法律问题，可将简历发往zliu@niwus.com。刘律师会在两个
工作日内对您的问题做出免费答复或评估。
白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law
Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执
照，刘宗坤联合律师事务所专业移民律师。
Liu & Associates, PLLC
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