An application for lawful permanent residence on the basis of employment can only proceed if USCIS has approved the I-140. If you have received an I 140 RFE for your employment-based Green Card, you will want to understand what this means for your petition.

An RFE is notification from USCIS that the adjudicating official does not consider they have sufficient information to make a decision on the application. It is not a refusal of the petition, but it gives clear indication that there is more work to do to convince the adjudicator that all eligibility criteria are satisfied.

RFEs can be issued both for I-140 petitions filed by the sponsoring employer or where the foreign worker is self-sponsoring and has themself filed the I-140.

Under current guidance, adjudicators have wide discretionary powers to deny an application without first having to issue an RFE or even a NOID. As such, it’s important to take full advantage of the opportunity to provide the requested information within the deadline.

 

What is an I-140 RFE?

 

An I-140 Request for Evidence (RFE) is a formal notice from USCIS asking for additional documentation before making a decision on an employment-based green card petition (form I-140). Instead of an outright denial, an RFE signals that USCIS needs more proof to confirm eligibility. It means that USCIS has reviewed the application and found missing, unclear, or insufficient evidence to approve it as submitted.

Receiving an RFE does not mean denial, but it does indicate that USCIS has concerns that must be addressed. The applicant (beneficiary) and their employer must provide the requested documents and information within the specified timeframe, usually between 30 to 90 days.

The impact on the application depends on how well the response is prepared. A strong response with the necessary evidence can lead to approval, while a weak or incomplete response may result in denial. Common reasons for an I-140 RFE include questions about:

 

• The employer’s ability to pay the offered wage
• The beneficiary’s qualifications (education, work experience, or credentials)
• Inconsistencies in the supporting documents

 

 

How to respond to an I-140 RFE

 

Receiving an I-140 RFE from USCIS necessitates a thorough and timely response to ensure the success of your employment-based immigrant petition. Taking professional advice can also help ensure that all options and arguments are considered to give you the best chance of a positive outcome.

Begin by examining the RFE notice to understand the specific deficiencies or missing information identified by USCIS. This will guide you in gathering the necessary evidence to address each concern.

Next, you need to collate comprehensive documentation that directly addresses the issues raised. Common areas of concern include:

 

• Employer’s Ability to Pay: Provide financial statements, tax returns, or other relevant documents demonstrating the employer’s capacity to pay the proffered wage.
• Beneficiary’s Qualifications: Submit diplomas, transcripts, professional licenses, or letters verifying prior work experience to substantiate the beneficiary’s credentials.

 

Structure your response clearly and logically: summarize the evidence provided and reference the specific RFE items they address, and label and organize all supporting documents for easy reference.

USCIS typically allows up to 84 days to respond to an RFE. Ensure your complete response is submitted within this timeframe, as late submissions may lead to petition denial. USCIS advises submitting all requested evidence simultaneously. Partial responses may be treated as final submissions, potentially leading to a decision without further opportunity to provide additional information.

 

How to avoid an I-140 denial

 

The RFE will identify the specific issues to be addressed in your case. Ensure you work closely to these, providing relevant and comprehensive evidence to resolve the concerns raised and potential objections to approving the petition.

Common areas for further information include inconsistencies in the information provided. The PERM and I 140 will be cross-checked. Any inconsistencies (can be as minor as a spelling mistake) will be scrunitized and may result in an RFE to seek clarification. It is better to triple check forms before submitting. If you spot an error on the PERM when filing the I 140, take advice on how this could impact your petition at this stage and how to bring any changes to USCIS’ attention.

The adjudicating officer will be looking to verify that the position is as described in the labor certification and that it qualifies under the visa requirements. The burden is on the petitioner to evidence the eligibility of the role and the worker in meeting the Green Card requirements.

For example, issues arise if the applicant’s education and qualifications are not evidenced sufficiently to show the required standard has been achieved. To be eligible under the EB-2 route, the position must require a Master’s degree, or the foreign equivalent, or a Bachelor’s degree, or the foreign equivalent, plus five years of progressive experience as a minimum for entry into the profession. The detail in both the labor certification and I 140 must comply with this. Qualification or experience anywhere below this will not be sufficient. The evidence must support that the worker attained this standard as at the date of filing of the labor certification.

Likewise, questions may be asked relating to the role itself, such as the salary level or designated working location. If the worker is intended to provide onsite consultancy-based support to clients, i.e. outside the principle worksite, USCIS may assert that the role does not meet the visa requirements. The employer must also give clear evidence of its ability to pay the proffered salary.

This is a complex and highly nuanced area. Take nothing for granted and make no assumptions about the adjudicator’s knowledge or understanding of the role or your qualifications. Take advice to ensure you are providing sufficient evidence that the role and worker comply with the rules.

 

Petition denied following an I 140 RFE

 

If you receive a denial following the RFE submission, an immediate concern will be the impact, if any, on your current immigration status.

If you are already in the US with valid non-immigrant status, a denied I-140 will not affect your status or visa validity. However, you may have been relying on the I-140 application to continue your lawful status after your current visa expiry.

The position becomes more complicated if your denied I-140 was supporting form I-485 to adjust your status to lawful permanent resident.

Take advice on your options and the timeframes involved to ensure you do not overstay, as this will be damaging to future US immigration applications.

Having received the denial, what are the options? Depending on the circumstances of your case, options could include appealing or potentially having to file a brand new application.

 

Appealing a denied I-140

 

If the application is denied, USCIS will provide details of how to appeal the decision to the Administrative Appeals Office (AAO) using form I-290B.

You will want to weigh up your options as to whether appealing is best for you. Appealing the decision will require you to evidence to the AAO that USCIS got it wrong. There is also the cost of the appeal and the timeframes involved – it can take around 6 months to hear the AAO’s decision on your appeal.

You will have to act quickly, as typically appeals must be made within 30 calendar days of the denial notice being received, or 33 if sent my mail).

 

Re-filing the I-140

 

If the I-140 is refused, you as the petitioning employer or the foreign worker may consider reapplying by filing a new I-140. You will also have to pay the USCIS filing fee again.

If you opt for this course of action, ensure that the new application specifically addresses all of the grounds for refusal identified by USCIS in the initial application. Compile and include extensive, relevant evidence to support your application. Remember to include all of the documentation from the original application as well – this will processes as a new and different petition, and must be comprehensive and complete.

In the new form, you will also have to answer YES to the question, “Has any immigrant visa petition ever been filed by or on behalf of this person?”.

Before filing, a useful exercise is to cross reference the new petition against the previous, rejected application. This is helpful to identify any potential gaps or areas of weakness before you submit.

A strong I-140 demands communication and collaboration between the sponsor and the worker. This can be achieved with the support of an experienced legal advisor familiar with processing and prevailing adjudication criteria.

 

Need assistance?

 

For specialist guidance, speak to the US attorneys at NNU Immigration.

 

I-140 RFE FAQs

 

What is an I-140 RFE?

An I-140 Request for Evidence (RFE) is a notice from USCIS requesting additional documentation to support your employment-based immigrant petition before making a final decision.

 

Does receiving an RFE mean my I-140 will be denied?

No an RFE does not mean denial It simply means USCIS needs more information before approving or denying your petition A well-prepared response can lead to approval.

 

How much time do I have to respond to an I-140 RFE?

The deadline varies but typically ranges from 30 to 90 days USCIS will specify the exact time frame in your RFE notice and late responses are generally not accepted.

 

What are the most common reasons for an I-140 RFE?

Common reasons include insufficient evidence of the employer’s ability to pay the offered wage lack of proof of the beneficiary’s qualifications or inconsistencies in the petition.

 

Can I submit new evidence with my RFE response?

Yes you can submit additional evidence as long as it directly addresses the issues raised in the RFE Providing strong supporting documentation can help strengthen your case.

 

What happens if I ignore or fail to respond to an RFE?

If you do not respond by the deadline USCIS will likely deny your I-140 petition Always review the RFE carefully and submit a thorough response on time.

 

Can an attorney help with my I-140 RFE response?

Yes an experienced immigration attorney can help analyze the RFE gather the necessary evidence and craft a strong response to improve your chances of approval.

 

Will an RFE delay my green card process?

Yes an RFE can extend processing times since USCIS must review your response before making a decision Responding promptly and accurately can help minimize delays.

 

Can premium processing help if I receive an RFE?

If your I-140 was filed with premium processing USCIS will continue to follow the expedited timeline after receiving your RFE response However RFEs can still cause delays.

 

What should I do if my I-140 is denied after an RFE?

You may be able to file a motion to reopen appeal the decision or refile with stronger evidence Consulting an immigration attorney can help determine the best course of action.

 

Glossary

 

 

Term	Definition
I-140 Petition	An immigration petition filed by a US employer to sponsor a foreign worker for a green card under an employment-based category.
Request for Evidence (RFE)	A formal request from USCIS for additional documentation or clarification before making a decision on an application.
USCIS	United States Citizenship and Immigration Services, the government agency that processes immigration applications.
Ability to Pay	A requirement for employers to prove they can pay the offered wage to the sponsored worker, usually demonstrated through tax records and financial statements.
Priority Date	The date when a green card petition is filed, which determines an applicant’s place in the visa queue.
Labor Certification (PERM)	A process where an employer obtains approval from the US Department of Labor before filing an I-140 to ensure no qualified US workers are available for the job.
Premium Processing	An optional service allowing applicants to expedite the processing of certain USCIS petitions for an additional fee.
Notice of Intent to Deny (NOID)	A notice issued by USCIS when it intends to deny a petition, requiring a strong legal and evidentiary response to challenge the decision.
Motions and Appeals	Legal actions taken to challenge a denial, including motions to reopen or reconsider and appeals to the Administrative Appeals Office (AAO).
Beneficiary	The foreign worker being sponsored for a green card under an employment-based immigration petition.