Differentiating Between an RFE and a NOID

When individuals submit petitions and applications to U.S. Citizenship and Immigration Services (USCIS) for processing, USCIS may need additional information to determine whether they are eligible or ineligible for the relief they request. In these cases, USCIS officers may issue a Request for Further Evidence (RFE) or a Notice of Intent to Deny (NOID) to petitioners or applicants in some circumstances.

Under current USCIS policy guidance, a USCIS officer must send out an RFE or NOID before denying the petition or application if there is a possibility that requesting additional evidence may result in a petitioner or applicant being able to correct deficiencies with their case. By forwarding additional evidence to USCIS in response to an RFE or NOID, the petitioner or applicant may be able to avoid a denial of their petition or application.

Understanding RFEs

A USCIS officer should issue an RFE if an application or petition does not contain all the information necessary to determine if the applicant or petitioner is eligible for the immigration benefit that they are requesting. According to the USCIS Policy Manual, an RFE should:

• • Identify the eligibility requirement(s) that has not been established and why the evidence submitted is insufficient;

• • Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;

• • Identify examples of other evidence that may be submitted to establish eligibility; and

• • Request that evidence.

The RFE should request all necessary evidence to avoid the issuance of multiple RFEs. Additionally, the RFE should state a clear deadline for submission of the requested evidence; the maximum response time to an RFE is 12 weeks or 84 days. However, USCIS does take time for mailing into account when determining whether an applicant or petitioner has met the deadline in responding to an RFE and whether the applicant or petitioner is located within or outside the U.S.

Some regulations specify fixed timeframes for responding to RFEs concerning certain applications or petitions. Furthermore, USCIS also has established a 30-day timeframe for responding to RFEs for the following applications, allowing an additional three days for mailing time within the U.S.:

• • Form I-539 – Application to Extend/Change Nonimmigrant Status

• • Form I-601A – Application for Provisional Unlawful Presence Waiver

Understanding NOIDs

Although USCIS officers also use NOIDs to request additional information from petitioners or applicants for immigration benefits, they generally use NOIDS only in selected circumstances. For example, USCIS issues NOIDS before denying any of the following immigration benefit requests:

• • Form I-800A – Application for Determination of Suitability to Adopt a Child from a Convention Country based on a mandatory denial ground;

• • Form I-800 – Petition to Classify Convention Adoptee as an Immediate Relative based on a mandatory denial ground; and

• • Form I-485 – Application to Register Permanent Residence or Adjust Status filed by a physician because they failed to comply with conditions attached to their national interest waiver.

USCIS issues NOIDs in other circumstances, as well, including the following:

• • When derogatory information is uncovered during the adjudication that is not known to the benefit requestor, and USCIS intends to deny the benefit request based on that derogatory information;

• • When USCIS intends to deny the immigration benefit requested due to a determination of ineligibility;

• • When the applicant or petitioner submits little or no evidence to support their application or petition; or

• • When the applicant or petitioner has met the eligibility requirements for the requested immigration benefit but has not established that they warrant a favorable exercise of discretion (where there is also a discretionary component to the adjudication).

NOIDs should identify the reason for the intended denial of the petition or application, explain why the applicant or petitioner has not met the eligibility requirements, and point out why the provided evidence is inadequate. The notices also should explain the nature of any adverse information, identify any specifically required missing evidence, identify other potentially helpful types of evidence, and request the evidence.

Unlike RFEs, the maximum timeframe for a response is 30 days. This deadline also allows for an additional three days for mailing time from within the U.S. and an additional 14 days for mailing time outside the U.S.

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