Tips on I-140 RFEs
We provide Tips on I-140 RFEs. The tip includes: instructions on responding to RFE within the regulation's short timeframe; instructions to follow after a petition has been denied as abandoned for failure to respond to an RFE; and instructions for requesting reopening where an RFE was never received.
If a petitioner fails to respond to an RFE, NSC will normally deny the petition as "abandoned." Attorneys should carefully review decisions for this abandonment language. A denial based on abandonment triggers specific regulations that severely restrict a petitioner's options: (a) no appeal is allowed under 8 CFR 103.2(b)(15); and (b) any motion to reopen or reconsider must meet the extremely restrictive criteria set at 8 CFR 103.5(a)(2), which requires that the motion be submitted with evidence that the decision was in error because:
- The requested evidence was not material to the issue of eligibility; or
- The required initial evidence was submitted with the petition or the RFE was complied with during the allotted period; or
- The RFE was sent to an incorrect address, or the Service was notified in writing of a change of address subsequent to filing and before the RFE was sent, and the RFE did not go to the new address.
Although it is standard practice for NSC to send an I-140 RFE to both the petitioning employer and the attorney of record, sometimes neither party receives the RFE, and the first indication of a problem occurs when the attorney receives a denial notice. Then the problem becomes one of convincing NSC to reopen the case because no RFE was ever received - in this situation, documentary proof of nonreceipt is not possible. NSC has reopened I-140 cases in this situation where the attorney of record has reported the problem through liaison in a timely manner. Thus, the key to success in reopening a case in this situation is timely notification - NSC has not set specific standards for timely notification, but will evaluate circumstances on a case by case basis. Therefore, to maximize the chance of success in this situation, the NSC Liaison Committee recommends that attorneys employ the following practices:
- Sign up with the USCIS Case Status Service for email notification of changes to the online status for each I-140 filed. When an RFE is issued, the online status message will be changed to reflect this event, and an email will automatically be sent to the attorney. Allow 7 to 10 days to receive the RFE; if not received within 10 days, attorneys should submit a liaison assistance request through InfoNet. NOTE: the USCIS email notification system limits the number of petitions that can receive the service.
- If the I-140 is denied based on failure to respond to an RFE, but no RFE was ever received, submit a liaison assistance request immediately upon receiving the denial. Be sure to confirm that neither the petitioner nor the attorney of record have changed address since the I-140 was filed. If the attorney of record has changed since the I-140 was filed (or has changed address), be prepared to submit a copy of your written notification to NSC of the change of counsel or change of address (i.e., your new G-28) with proof of delivery to NSC, upon request by the attorney.