Receiving a Request for Evidence (RFE) on a National Interest Waiver (NIW) petition can feel like a setback, but it is also an opportunity to clarify and strengthen your case. It means an adjudicating officer has reviewed your file and has specific questions that need to be answered. A common question that arises during this phase is how much flexibility you have to modify your “proposed endeavor.” Understanding the line between permissible clarification and an impermissible “material change” is key to a successful RFE response.
The Rule of Post-Filing Evidence
A foundational rule in responding to an RFE is that you cannot use new evidence of events or accomplishments that occurred after you filed your petition to prove your eligibility. The case must be won based on the facts as they existed on the date of your initial submission. Think of your petition as a snapshot in time; you can add details to clarify what’s in the picture, but you cannot add new elements that weren’t there when it was taken. You can, however, submit new evidence that helps to prove or clarify the facts that were in place at the time of filing.
Clarifying vs. Changing Your Proposed Endeavor
When it comes to your proposed endeavor, this rule means you can reframe and provide more detail, but you cannot fundamentally change your plan.
Permissible Reframing and Clarification
It is perfectly acceptable, and often a good strategy, to use the RFE as a chance to better explain your original endeavor. This can involve:
- Elaborating on its national importance.
- Providing more detail on your specific plans.
- Submitting additional expert letters that speak to the significance of the work you proposed at the time of filing.
This is considered clarifying your original intent, not changing it.
Impermissible Material Changes
A “material change” is a significant alteration to your proposed endeavor that makes it fundamentally different from what you originally presented. For example, if your initial petition was based on your work as a cancer researcher at a university, you cannot respond to an RFE by stating you now plan to open a private art gallery. This would be a completely different endeavor.
A more subtle, but still likely impermissible, change would be shifting from a role as a key software engineer at a major tech company to proposing to launch your own, unrelated tech startup. While both are in the tech field, the nature of the endeavor and the evidence needed to support it are vastly different. The first role is about your impact within an existing structure, while the second requires a business plan and proof of entrepreneurial capacity.
The Strategic Choice: Respond or Refile?
If your professional goals have genuinely and significantly shifted since you first filed your NIW petition, responding to an RFE based on your old plans may not be your strongest option. In such cases, the best strategy is often to withdraw the current petition and file a new one.
Filing a new NIW petition allows you to build your case from the ground up, using all of your most recent accomplishments and a proposed endeavor that accurately reflects your current career trajectory. This ensures your petition is as strong and up-to-date as possible.
Navigating an RFE requires a careful and strategic approach. For more in-depth strategies, we encourage you to download our free guide for NIW. If you are facing an RFE and are unsure of the best path forward, schedule a consultation with us to discuss your options.
