Most common reasons for RFE for an O-1 visa

The O-1 Visa is one of the most prestigious Nonimmigrant Visa because it has higher requirements and offers numerous benefits compared to other categories. Being granted this Visa requires providing a substantial number of quality evidence that confirms that the interested alien is an extraordinary professional in their field. However, this may be argued by the US immigration officers in charge of the case.

In fact, it has now become an increasingly common trend for the United States Citizenship and Immigration Services (USCIS) to issue a notice called Request for Evidence, to ask for documentation to support the O-1 extraordinary ability criteria. In this article, we are going to explain what a Request for Evidence is, which are the most common reasons for its filing, and how to prevent it with a strong case foundation.

What is an O-1 Visa?

The O-1 Visa is a Nonimmigrant Visa designed for individuals who possess extraordinary ability in various fields such as business, arts, science, or athletics, as well as those in the motion picture and television industry.

The O-1 Visa is the perfect solution for those who can demonstrate a sustained level of national or international acclaim and recognition for their significant and original achievements in their field of expertise. An O-1 beneficiary must prove to be one of a small percentage of individuals who have risen to the very top of their field, and that they will move to the United States to work in an area of extraordinary ability.

In order to receive an O-1 visa, the applicant must have an established work offer in the United States, and the future employer who will be in charge of filing the Application Form I-129 Petition for a Nonimmigrant Worker to the United States Citizenship and Immigration Services (USCIS).

As a rule, three of eight criteria must be satisfied to successfully obtain an O-1 Visa. They are:

1. Awards. The alien has received nationally or internationally recognized prizes or awards for excellence in their field,
2. Membership. The alien is a member of associations in the field for which classification is sought. The membership must require outstanding achievements from their members, as judged by recognized national or international experts in their disciplines or fields,
3. Published material in professional or major trade publications or major media. The published material has to be about the alien, relating to the alien’s work in the field for which classification is sought. It shall include the title, date, and author of such published material,
4. Judging. The alien has participated on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought,
5. Original contributions. The alien has original and significant contributions in the field,
6. Authorship. The alien is the author of scholarly articles in the field, in professional journals, or in other major media,
7. Critical capacity or role. The alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation,
8. High salary. The alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

For more information about O-1 visa requirements, take a look at our article!

What is an RFE?

After the submission of the Form I-129 Petition for a Nonimmigrant Worker and all the necessary evidence to sustain the extraordinary ability of the alien, the USCIS may respond with a notice called Request for Evidence, also referred to as an RFE, to request more documentation. 

Receiving an RFE is not a synonym for denial, and solely indicates that the petition is on-hold. In other words, the USCIS officers require further evidence in order to make a final call on the case. 

Why did I receive an RFE?

The USCIS officers may decide to send an RFE for multiple reasons, such as an error in the format of the evidence submitted or content incoherence. Generally, there are two types of RFEs: Non-criteria related Requests for Evidence and Criteria related Requests for Evidence.

The Non-criteria related Request for Evidence may refer mostly to a language error or a translation issue. The documentation attached to the petition must follow some language rules, which are specific to immigration issues. Choosing the wrong word or omitting a needed detail may be an alarm bell for the USCIS officers, who may want to examine more on the foundation of the alien documentation.

The translation may also be a reason for which the USCIS officers may decide to file an RFE. All the submitted documents must be translated to English, under a specific format and translation rules. A wrong or incomplete translation will likely result in an RFE.

The Criteria related Request for Evidence refers to the specific criteria needed to determine the extraordinary ability of the applicant. If the petition does not collect sufficient documentation, and this is not argued in a substantial way, the USCIS officers will ask for more evidence or will determine that the alien is successful, but not extraordinary.

There are three possible responses for each submitted criteria:

• Based on the evidence currently in the record, it appears that you have met this criterion.

This means the USCIS officer agrees that the applicant meets this criterion.

• It does not appear that you have attempted to qualify the beneficiary under this regulatory criterion. You may still submit evidence to qualify the beneficiary under this regulatory criterion.

This means that the criterion was not argued in the initial petition.

• To qualify the beneficiary under this criterion, you submitted: [information about the evidence submitted]
  The evidence you submitted is not sufficient.
  You may still submit evidence to qualify the beneficiary under this criterion.

This means that the evidence was submitted, but the USCIS officer thought it was not sufficient and is not going to give the alien this criterion unless it can be justified in an RFE response.

It is easy to understand that the reasons to receive an RFE are varied. Little details do count and can make a difference between a direct approval, an RFE, or a denial. In the following paragraph, we are going to explore the most common O-1 RFEs.

Most common O-1 RFEs

Even if the reason for receiving an RFE can be the most unexpected, there are some common patterns in RFEs.

RFE for Published material:

The general reason for an RFE for the Published Material criterion is that the published material listed is not enough to establish that the alien is one of the best in the field. This may be because the provided material does not focus on the alien’s achievements and extraordinary ability, and it may be only focused on their company’s achievement, or a successful product created. It may also argue that the journal(s) or newspaper(s) which published them do not qualify as major publications, which is the standard requirement.

RFE for Judging the work of others:

The alien will receive an RFE for this criterion if the petition does not argue sufficiently the requirements and the significance of judging in a specific event, and therefore the evidence may be defined as incompatible or insufficient. 

RFE for Original contributions of major significance in your field:

The alien needs to prove that their contributions have been original and have already had a major significance and impact in their field. This must be certified by peer experts and may be a hard criterion to be met. The usual way to support the originality and significance of the alien’s contributions is through recommendation letters signed by top professionals in the field, who certify the extraordinary abilities of the alien. However, specific language and requirements need to be respected in the letters; if not, the USCIS officers will likely argue them with an RFE.

RFE for Employment in a critical or essential capacity:

For this criterion, the alien needs to prove that the role they occupied was critical or essential and that it was in a reputable organization. Sometimes, the USCIS may agree on one of the two but will want the alien to prove the other part further. Therefore, the submitted petition must consider supporting both aspects with sufficient evidence and argumentation.

RFE for High Salary:

This criterion requires the alien to prove that his past or future salary is higher compared to others in the allied occupation. The comparison has to be done within the same country/region where the applicant performed or will perform his duties. key to the approval of this criterion relies on the supporting evidence attached to the petition and providing sufficient data to the USCIS officer to confirm that the alien’s salary can be ranked as high.

RFE for Membership in  professional associations:

As the O-1 Visa is for extraordinary individuals, it goes without saying that not all associations will count when it comes to demonstrating the alien’s extraordinary ability. To satisfy this requirement, the alien needs to submit evidence showing that they became a member as a result of their contributions or achievements in the field. Therefore, they can provide information that establishes that those who reviewed their membership eligibility are recognized international or national experts in the field. Another option is to present the high-standard association’s requirements for membership.

How to avoid an RFE?

Experience and attention to detail are undoubtedly two helpful resources to avoid an RFE. The aspects that need more attention are:

• Avoid missing initial evidence. Be sure to attach all the required forms, checks, and supporting documentation, and do not miss any mentioned evidence in the petition.
• Provide all the proofs of the alien’s legal entry into the United States. If the alien is already in the country, or they visited it in the past, they need to provide all the evidence of their legal stay in the US. This can also be done through the I-94 travel history (Arrival/Departure Record), the stamped passport pages, visas…
• Be sure to translate all the documents into English. A submitted document in a language other than English without a proper translation will not be considered, and therefore there will be a lack of evidence in the petition. The same will happen if the translation does not meet the requirements specified by the USCIS.

How to respond to O-1 Visa RFEs?

The first step in responding to an RFE is to read the entire RFE carefully, analyze all the argued criteria, and understand what was not accepted in the first submission. The USCIS will only send an RFE once, and therefore there will not be a second chance to convince the officer of the extraordinary ability of the alien.

There are three ways to respond to an RFE:

• To give a full response and submit all the requested evidence,
• To give a partial response and submit part of the requested evidence,
• To not respond, which will result in an automatic denial. 
• To withdraw the petition without responding to the RFE and re-file it with the additional requested documentation 

If the decision falls on the two first options, then a response package will need to be prepared. It should include:

• The original RFE notice and
• A response with any necessary explanations to the argued criteria. 

Additionally, consider that if there is any document requested in the RFE that cannot be provided, you should explain why you don’t have access to it, and provide alternative evidence if possible. 

Bear in mind the deadline indicated in the RFE to submit the response. A late response will not be accepted and will turn out as a denial. 

Conclusion 

The most important aspect to keep in mind and to be aware of is that an RFE does not mean the petition is denied, and therefore there is no need to panic. The best way to avoid RFEs is to build a strong and well-argued foundation to prove an alien’s extraordinary ability and met-requirements to be granted an O-1 Visa. 

PassRight can evaluate your professional profile and explain to you how to prepare the strongest application possible, besides helping you to plan and gather the necessary documents to avoid an RFE. Feel free to contact us and explain to you how to build a successful legal strategy or how to prepare a convincing RFE response.