New York Lawyer's Legal Updates

Common RFEs In Adjustment Of Status Based On Marriage Cases

Author: Marriage Immigration attorney Alena Shautsova

An RFE or request for more evidence is a document issued on a yellow or pink paper that many applicants for adjustment of status meet with a great distress. First, I should state here that if you receive an RFE, do not panic. Look at it as an opportunity to supplement the record and present clarifications to the previously presented documents, rather than an alarm that your case will be denied. In most cases, if you do present requested documents, the case will not be denied. It is a whole different story what to do if you do not have the documents requested. So, let’s talk about most common RFEs in most common cases of adjustment of status, adjustment based on marriage to a US citizen.

RFE stating that petitioner’s income is below 125% of poverty guidelines.

In order for a family member, or a spouse to be sponsored into the US, a petitioner or the US citizen has to demonstrate that he/she possess enough income so that the immigrant will not become a public charge. The law establishes the guidelines for the income (form I 864P), and the petitioner executes an affidavit of support, form I 864, and must attach at least most recent federal income tax return. Now, the easiest way to meet the threshold is to demonstrate that your W2 income is higher than the bottom line income pursuant to I 864p form. If the income is not sufficient, a petitioner may use the income of the household members or a joint sponsor’s income. Also, petitioner’s assets may be taken into consideration. Surprisingly, the most RFEs come when petitioner’s income, in fact, meets and exceeds the poverty guidelines? Why? I believe it is due to USCIS’ mistakes. USCIS has been repeatedly questioned about this issue, and every time its representatives deny mistakes on their part, but then the fact is that many attorneys who work on marriage based cases will say the same thing: they submitted all the supporting documents showing sufficient income, and still received and RFE. It means, that sometimes RFEs come by mistake, and do not really threaten your case, all you need to do is to resubmit already submitted documents.

RFE asking for proof of legal entry or inspection and admission

I would say that this a most undesirable RFE. Often, an attorney already knows that “entry” determination will be an issue. So, why would the case would be filed in the first place, you ask, if the lawyer knows that an applicant did not have a visa at the time of entry? It is because there are exceptions established by the law and litigation to the hard evidence of legal entry such as I 94 card or a stamp in your passport. An exception may come from the fact that an adjustment of status applicant was “waived in” at the border or because an applicant is filing under a grandfathering exception or maybe applicant was paroled… Nevertheless, in most cases, an attorney would heave a theory under which he/she believes an applicant is admissible (or at least should have such a theory), and such an RFE is an indication that he/she may face a little hardship in proving his/her theory.

An RFE asking to provide translated birth certificates or judgments of divorce from previous marriage(s)

This RFE should be easy to answer. There is no official language in the United States, however, all documents that are sent to USCIS must be accompanied by an English translation. This translation does not need to “certified” and in fact, may even be performed by a friend who would supply a certification that he/she possess sufficient knowledge of English and _____ language and the translation is accurate. There are no requirements for a notarized translation or an apostile either. The issue may come from an inability to obtain a copy of the birth certificate or certificate/judgment of divorce. USCIS allows for substitution of records regarding the birth certificate, but not the documents regarding the divorce(s). In fact, if an applicant (or a petitioner) has been married and divorced multiple times, he/she has to submit certificates/judgment of divorce for each previous marriage. Also, do not forget: if at the time you were applying for a visa you stated you were married, at the time of the adjustment of status based on a marriage to a US citizen ( a new marriage), you have to produce a certificate of divorce. One may not simply disregard a marriage in their home country. It has to be legally terminated before he/she can enter into a new marriage.

If you have more questions about the topic or need assistance with your case, please call 917-885-2261 or email at office@shautsova.com .

03 October 2016
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