Should a flat fee for an immigration case include RFE responses?

Either answer can work, as long as the engagement letter says which. Including RFEs gives the client certainty, but the base fee then has to be priced on the firm’s own RFE history for that case type. Excluding them works when the letter names the RFE as a separate stage with its own fee or an hourly estimate. The wording is the firm’s attorneys’ call.

How long does a firm have to respond to an RFE?

Under 8 CFR 103.2(b)(8)(iv), the request states the deadline, which can never exceed twelve weeks, and additional time may not be granted. The USCIS Policy Manual counts that as 84 days, plus three days when the request is served by mail. The due date on the notice itself governs the matter.

Can a firm charge extra for an RFE on a flat-fee case?

That depends on what the engagement letter says and on the firm’s state rules. ABA Model Rule 1.5(b) prefers the scope and fee in writing and has any change in the basis or rate of the fee communicated to the client. Ask the bar’s ethics counsel or the firm’s attorney.

How can an immigration firm tell whether its flat fees are profitable?

Log time on flat-fee matters even though it is never billed, then divide each matter’s collected fee by its total hours and compare case types, with and without an RFE. Read it by case type: one firm-wide average hides the case type that pays below cost.

What happens if an RFE response is late?

Under 8 CFR 103.2(b)(13), when a request for evidence gets no response by the required date, the benefit request may be denied as abandoned, denied on the record, or both. That is why the fee conversation belongs on its own schedule, well inside the response window.

Answers · Law Firms

Flat-fee immigration and the RFE: a change order nobody wrote

In a flat fee immigration practice, an RFE — a request for evidence from USCIS — is the moment a fixed price meets work nobody priced: new documents, new declarations, sometimes an expert letter, all due by a deadline USCIS will not extend. Whether the firm is paid for that work was settled months earlier, in one sentence of the engagement letter, or left unsettled by its absence. This guide is for the owner’s side: how the RFE can be written into scope, how to count the flat-fee matters whose hours ran past what the fee assumed, where an advance flat fee sits until it is earned, how to price the response while the clock runs, and when the honest fix is a different base fee rather than a better letter.

By Tamara Stepanyan, founder of Lumina Business Advisory · Updated October 27, 2026 · Sources checked October 17, 2026 · Editorial standards

Why an RFE breaks a flat fee

A flat fee is a price for a defined piece of work, and behind it sits an assumption about hours: a petition of a given type, prepared and filed, with the questions that case type normally raises. An RFE is USCIS saying the record is not yet enough. Under 8 CFR 103.2(b)(8)(iv), the request specifies the evidence required, states a deadline, and in no case gives more than twelve weeks to respond; additional time may not be granted. The USCIS Policy Manual puts the same limit at 84 days, plus three days when the request is served by mail.

The stakes of missing it are set out in 8 CFR 103.2(b)(13): a request with no timely response may be denied as abandoned, denied on the record, or both. So the work is urgent, it cannot wait for a fee conversation, and it arrives on matters the firm already priced. If the engagement letter is silent on RFEs, the default is that the work gets done under the original fee, because there is no time to settle anything else.

That is not wrong in itself. Some firms include RFE responses on purpose and price the base fee to carry them. The problem is the firm that never decided — whose fee was set for a clean case, and whose RFE hours land on the same matters, unpriced and uncounted.

Three ways to write the RFE into scope

ABA Model Rule 1.5(b) has the scope of the representation and the basis or rate of the fee communicated to the client, preferably in writing, and any change in the basis or rate communicated too. States adopt their own versions, and the exact language of an engagement letter belongs to the firm’s attorneys or its bar’s ethics counsel. As a business decision, there are three honest choices, and each has a cost:

Included: the flat fee covers a response to any RFE on the matter. The client gets certainty; the firm carries the risk, so the base fee has to be priced on the firm’s own RFE history for that case type, not on a clean case.
Excluded, priced as a second flat fee: the letter names the RFE as outside scope and sets a fee for a response, or a small set of fees by how much new evidence the request demands. Both sides know the number before the notice arrives.
Excluded, billed hourly against a written estimate: the firm reviews the request, sends an estimate, and bills the time. Flexible, but the client faces an open amount in the middle of a stressful wait.

What fails is the fourth option nobody chooses on purpose: a letter that does not mention RFEs at all, so each one becomes a negotiation with a deadline running — or no negotiation at all.

Milestones: where an advance flat fee sits until it is earned

Scope is one half of the fee question; the other is when a flat fee counts as earned. ABA Model Rule 1.15(c) has fees paid in advance deposited in a client trust account and withdrawn only as they are earned. ABA Formal Opinion 505 (2023), as summarized in the ABA’s Criminal Justice Magazine, concludes that advance flat fees belong in trust until earned, that labels such as “nonrefundable” or “earned on receipt” do not change that, and that a representation can be divided into stages, or milestones, so that portions of the fee are earned along the way. The same article notes that a minority of jurisdictions take a different approach.

For an immigration practice, milestones and RFE scope are the same conversation. If the letter defines the stages — intake and document collection, preparation, filing, and an RFE response as its own stage with its own price — the firm knows what it has earned at each point, and the client knows what a request for evidence will cost before it arrives. Which structure the firm’s state allows, and how its trust account must handle each stage, is a question for its bar’s ethics counsel or its attorney. An operations review never touches the trust account; it reads matter stages and dates. Not legal advice.

The hours check: which flat-fee matters ran past the fee

The only way to know whether RFEs are eating the margin is to count them, and the count needs time entries on flat-fee matters — time that is never billed but always recorded. Pull the last twelve months of closed flat-fee matters from the practice management system and build one row per matter, with no client names:

Case type and the flat fee charged.
Hours logged by attorneys and by paralegals, separately.
Whether an RFE was issued, the notice date, and the hours logged after it.
Whether any added fee was agreed for the RFE, and whether it was collected.
Effective hourly rate: the fee collected divided by total hours.

Illustrative example: a case type priced at a hypothetical $4,000 on an assumption of 16 hours earns $250 an hour on a clean case. The same case with an RFE that takes 12 more hours earns about $143 an hour. If a third of that case type drew an RFE last year, the base fee was set for a case the firm only partly sees. Replace every number with the firm’s own, and read the result by case type, never as one average. If attorneys and paralegals do not log time on flat-fee matters, the fee cannot be checked against anything — and that blank is the first finding.

The 12-week clock as the deadline for pricing the extra work

When the letter excludes RFEs, the pricing step has to fit inside the response window without touching it. A short written routine does that:

The day the notice arrives, one named person logs it on the matter: notice date, how it was served, and the response due date from the notice itself.
Within a few business days, the responsible attorney reviews what the request asks for and assigns it a scope tier or an hours estimate.
The same week, the client receives the request explained in plain words, the response plan, and the fee for it in writing, with a link to sign and pay.
The firm sets an internal target well ahead of the USCIS deadline, and the work schedule runs from that target, not from the signature.
If the client has not answered on the fee, what the firm does on the response is the attorney’s professional call, made with time to spare. Ask the bar’s ethics counsel when unsure.

The routine’s purpose is that no RFE response is ever started with its price undecided, and no price conversation ever eats into the response window.

When the fix is a different fee — and when not to hire anyone

Sometimes the hours check says the letter is fine and the base fee is wrong. If RFE hours concentrate in one or two case types, the honest fixes are a higher base fee for those types, an RFE stage priced into the letter, or a sharper intake screen for the facts that draw requests. A better follow-up script does not fix a price set for a case the firm does not get.

If the managing attorney already knows each case type’s hours and the letter already names the RFE, nobody needs a consultant. Run the hours check once a quarter on a spreadsheet and adjust. A solo practitioner who prices, prepares and files every case personally sees this in real time.

For a firm that cannot say which case types pay after RFEs, the Revenue Review takes two weeks. It reads counts, dates and stages — matter lists, time entries, invoices and payment dates — exported de-identified wherever possible: no client names, no case files, no trust-account access, no client funds. The written report prices each leak and sets out a 90-day plan; any build afterward is scoped and priced separately. Lumina is not a law firm and gives no immigration, legal or ethics advice. Below about $1 million a year in fees, the Review’s price does not fit, and the free 20-minute call says so.

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Asked right after

Should a flat fee for an immigration case include RFE responses?: Either answer can work, as long as the engagement letter says which. Including RFEs gives the client certainty, but the base fee then has to be priced on the firm’s own RFE history for that case type. Excluding them works when the letter names the RFE as a separate stage with its own fee or an hourly estimate. The wording is the firm’s attorneys’ call.
How long does a firm have to respond to an RFE?: Under 8 CFR 103.2(b)(8)(iv), the request states the deadline, which can never exceed twelve weeks, and additional time may not be granted. The USCIS Policy Manual counts that as 84 days, plus three days when the request is served by mail. The due date on the notice itself governs the matter.
Can a firm charge extra for an RFE on a flat-fee case?: That depends on what the engagement letter says and on the firm’s state rules. ABA Model Rule 1.5(b) prefers the scope and fee in writing and has any change in the basis or rate of the fee communicated to the client. Ask the bar’s ethics counsel or the firm’s attorney.
How can an immigration firm tell whether its flat fees are profitable?: Log time on flat-fee matters even though it is never billed, then divide each matter’s collected fee by its total hours and compare case types, with and without an RFE. Read it by case type: one firm-wide average hides the case type that pays below cost.
What happens if an RFE response is late?: Under 8 CFR 103.2(b)(13), when a request for evidence gets no response by the required date, the benefit request may be denied as abandoned, denied on the record, or both. That is why the fee conversation belongs on its own schedule, well inside the response window.

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