Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

When we prepare any of our cases, our law firm takes the approach of filing an extremely thorough case to avoid receiving an RFE.  We can usually predict, with 99% accuracy, whether USCIS will issue a Request for Evidence.  We begin by thoroughly examining every legal issue.  If we find something that USCIS would deem as problematic, then we take an exhaustive approach, often doing more than what is required, to provide USCIS with what it needs to approve our case. 

Next, we ensure that ALL of the information on each form is accurate.  Many people overlook many of the questions or do not take the time to list accurate information thinking that it is irrelevant.  Although you think multiple questions ask the same thing, do not be tricked; each question is being asked to obtain a certain piece of information from you life that will be used to determine your eligibility.  And if there is a mistake on a submitted form, it becomes part of your permanent record. So you have to make sure, from the outset, that all of the information on the forms is accurate.

Regarding the supporting documents, each document is provided for a very specific purpose, to prove one of the qualifying criteria.  We take a “quality over quantity” approach, making sure to never “overdo” it by flooding USCIS with unnecessary documents.  USCIS has limited time to review our filing. 

More often than you think, while working on the case, we discover legal issues that turn the case from a straightforward one, into a complex one.  Immediately, we contact our client and inform them of this “red flag,” The client was unaware of it at the outset and is often surprised when we mention it.

Then we work with the client to find out the best strategy.  Many law firms take the approach of the attorney ignoring the client’s input; we take quite the opposite approach!  If it is the client’s life at stake, why wouldn’t we include them as an equal member with equal advice and input as to what is submitted to USCIS?  Together, we work with the client to overcome the red flags and provide USCIS with all the information and documentation it would need to approve the case.  

What is a Request for Evidence? 

After you send in your form and fees to USCIS, USCIS will review it to determine whether you qualify for the immigration benefit. If USCIS does not have enough information to approve your case, it will issue an RFE (which is different than a NOID, described below).  Most often, the RFE will simply ask for the missing documents.  Sometimes, USCIS uses “template” or “blanket” language that is not specific to your case.  We have seen this type of language when USCIS is requesting financial documents from the petitioner or joint sponsor, or, when it is requesting evidence of birth during the adjustment of status process.

Usually the response time is a maximum of 84 days and will allow you to either submit your response in hard copy or upload it to your myUSCIS account (specific instructions are included on the RFE). So just how bad is it to receive an RFE?

Why Did I Receive an RFE?

From what we see with our clients, what happens MOST often is a client submits an application that has been prepared by themselves, or by an untrained person (often a friend or family member), or by paying a notario (who is practicing law without a license and is breaking the law), or even by an inexperienced or negligent immigration attorney.

USCIS issued an RFE because your initial filing did not contain all of the required information or documentation for USCIS to approve the case. 

The client then receives an RFE and comes to us hoping that we can file a response that will get the case approved.  If we agree to represent the client, in nearly all of these cases, we are able to help them and receive an approval.  This even applies in circumstances where the client tells us they are unable to provide the information and / or documentation that USCIS needs to approve the case.  We are very good at thinking creatively, or “thinking outside of the box.”

How Do I Respond to an RFE?

Although the language can seem simple enough, do not take this lightly. We tell our clients that this is their second (and last) chance to win the case.  We never advise a client to file the response on their own because of the serious consequences, which can include being put into deportation or even being permanently denied for citizenship.

It is not unheard of for USCIS to accidentally overlook documents that were provided in the initial filing and then issue an RFE by mistake.  But even in those cases, we do not simply provide the same documents as that could result in a denial, especially if USCIS did not overlook these documents.  With any RFE, we ALWAYS take the approach that USCIS DID NOT make a mistake in issuing an RFE. That’s where our experience of over 15 years and creativity take over.

The one piece of advice that we convey is to not file the RFE response on your own. The consequences are too dire and irreparable if you make a mistake.  Please email us and upload a copy of your RFE to request; if we are able to help, we will respond via email with a legal fee estimate. 

Notice of Intent to Deny (NOID)

What’s difference between a Request for Evidence and Notice of Intent to Deny?  Well, it’s a BIG ONE!  To summarize, think of it this way- an RFE has the tone of “you’re innocent until proven guilty” whereas a NOID has the tone of you are “guilty until proven innocent.”

When an RFE is issued, the officer believes you ARE ELIGIBLE for the immigration benefit, but is missing key information to approve your case.  When a NOID is issued, the officer believes that based on the information provided in your initial application, you ARE NOT ELIGIBLE for the immigration benefit, and if the information is not provided, your case will be denied.

Example: John marries his first love right out of college in California.  John’s wife agrees to file for divorce and John then moves to Maryland; they eventually lose touch.  Years later, he falls in love with the “love of his life” and marries her.  They filed their green card package.  USCIS issues a NOID that requests a copy of his judgement of divorce.  John contacts his first wife who tells him that she never filed the divorce paperwork.  In this case, John is not eligible for a green card based on his second marriage; because his first marriage was never terminated, his second marriage is null and void. 

Unlike with RFEs, in some of the NOID cases, we are unable to help because “too much damage” has been done.  This is because in almost every NOID case that we have seen, USCIS has done in-depth investigation and in the NOID has described all of their discoveries and even listed the documentation that supports their assertion that the applicant is not eligible for the benefit. Often the NOID is several pages long and usually ends with a conclusion of some type of “misrepresentation to obtain an immigration benefit.”

The most common question we get from potential clients who receive a NOID is “what are my chances of winning?”  Our response is that the officer already believes the s/he is “lying” which is substantiated by the bulk of evidence that they found in the public record.  If we provide any information that is inconsistent with what is in USCIS’ record, then the officer is going to think, “is the applicant lying now (in this NOID response) or, was the applicant lying then (with the initial application)?  Because we have inconsistent information.” So what do we do as your attorney? 

Example: Jane who lives in Connecticut married her husband Joe who lives in Texas, but because of her school schedule and Joe’s work schedule, they never lived together.  Their driver’s licenses list their addresses in Connecticut and Texas. After marriage, neither Jane nor Joe update their emergency contact information with.  The couple does not make a lot of money so Jane moves into an apartment with Joe’s best friend Marc and they sublet an apartment (where the utilities are paid by the lessee) for two years, which is the time left for Jane to complete her Master’s degree.  Both Jane and her husband have bad credit and cannot qualify for credit cards, a home loan or an auto loan.  Because of her school and part-time work schedule, she cannot take time off to fly home to be with her husband.  They do not call often because Joe works at night (when Jane is not at school or work). The couple does have a joint bank account which was opened recently, but there aren’t many transactions since the couple lives paycheck to paycheck.  The only transactions are transfers out of the account into each of the couple’s individual bank accounts.  In order to get a bigger tax refund, the couple files their taxes as “married filing separately.”  USCIS schedules an interview and the couple  is separated; sworn statements are taken and the answers that each provides (about the details of their wedding, spouse’s family history, spouse’s employment history, holiday plans).  USCIS then conducts an investigation by calling the apartment unit, Joe’s employer, checking IRS’ records, and issues a NOID which alleges that Jane married Joe in order to obtain an immigration benefit; it specifically states that the “bank account” was created for the purpose of the green card application.

In cases like the above, we take a multi-level approach that consists of: 1) explaining why the applicant provided the problematic information in the initial filing; 2) clarifying our client’s position and in doing so, proving our client is eligible for the benefit (did not provide false or misleading information); and 3) providing the documents that support our client’s position.  

Motion to Reopen / Motion to Reconsider / Appeal

Like with an RFE, a NOID denial is very serious and can result in being put into deportation or even being permanently denied citizenship.  What we have seen, more often with NOIDs than with RFEs, is a determination of “immigration fraud.”  When USCIS denies a case, it can be denied for two reasons: 1) the applicant failed to provide sufficient information that they are eligible for the benefit (failure to meet the legal burden of proof by preponderance of the evidence); or 2) USCIS has determined that the applicant has committed immigration fraud (most commonly seen in marriage-based green cards) which under the “marriage fraud bar” prevents the applicant from receiving any type of immigration benefit (but for very few limited circumstances).  The “marriage fraud bar” means that even if you get divorced and have a new petitioner, you will still be barred from receiving a green card due to the alleged fraud from the previous marriage. No waiver exists for “marriage fraud” cases.

A denial of an I-130, Petition for Alien Relative allows the petitioner to appeal to the Board of Immigration Appeals.  A denial of an I-485, Application to Adjust Status allows the applicant to file a “motion to reopen” or a “motion to reconsider,” each of requires very specific legal arguments and documentation.  If a client comes to us after receiving a denial, but for USCIS error, we usually end up re-filing a new case as opposed to a motion. There are pros and cons to filing a motion as opposed to submitting a new filing. 

If you are in any of the situations above, please send us an email.  If you received a NOID or an RFE, when you submit your inquiry (either via email or the ChatBot), please submit a copy of the NOID or RFE and we will provide a legal fee estimate via email.