Immigration law can be a difficult terrain to navigate. Between filing forms, paying fees, submitting evidence, and appearing for interviews, it can be easy to find yourself tangled in a difficult immigration case. The best way to avoid this is to have an immigration attorney handle your case, but what if you’ve already received an RFE or a NOID? What should you do next? What is the difference? Keep reading to find out everything you need to know about these two common USCIS actions and how you can handle them.
Firstly, we need to define some immigration law terms: rejection and denial. While they may seem similar and even synonymous, they signify very different things in the eyes of the USCIS. When your petition for your visa or green card is being processed, it will go through an initial stage. During this stage, an officer will simply make sure that your petition was completely filled out, that the information is accurate and consistent, that sufficient payment was sent to the correct place, and that there is enough supporting evidence and documentation to back up your petition.
If it fails this stage, your petition will likely be rejected. If it passes, then it will be closely scrutinized by an evaluating officer, who will adjudicate your case. Should the officer find that your case does not qualify for the proposed visa at this stage, the petition will likely be denied.
Now that we know the difference between a rejection and a denial, let’s dive into the difference between an RFE and a NOID.
What is an RFE?
A Request for Evidence (or RFE), is a notice that the USCIS dispatches when a petition is lacking in evidence that it deems crucial to its processing. Often, this is simply a request for a copy of a birth certificate, marriage license, degree, passport, or other document that is easily obtained. However, it can sometimes be more involved, such as a request to employers for bank statements that demonstrate an ability to pay the prevailing wage or evidence that a valid employee-employer relationship exists for an H-1B visa.
If you do not respond to the RFE or respond in a unsatisfactory manner, then your petition will likely be rejected. RFEs are very common and are becoming more frequent as the USCIS places more scrutiny on cases such as those for H-1B visas.
What is a NOID?
A Notice of Intent to Deny (or NOID) is a notice that the USCIS sends to inform the petitioner that the evaluating officer plans to deny the petition. The reason for issuing a NOID rather than simply denying the petition is to outline the reason for the denial and to save both you and the USCIS time and money by avoiding re-petitioning, appeals, and legal motions if possible.
You can consider a NOID as a more serious version of an RFE. RFE’s can occasionally be issued because of superfluous errors or missing information. A NOID is issued because there is an issue with your eligibility for the visa. If the USCIS has discovered any information about you that may put a mark on your record (such as a criminal history or having violated your immigration status in the past), a NOID may be sent to give you the opportunity to make a defense for yourself.
RFE vs NOID
There are several differences to take into account when it comes to RFEs and NOIDs.
- RFEs are usually dispatched because the officer is not sure whether or not the petition should be approved and needs more evidence to determine the outcome. A NOID is given when the officer does not think that the petition should be approved, but believes that additional evidence could sway the decision.
- An RFE will include a list of the evidence needed to avoid a denial or rejection. A NOID will include a list of reasons why your petition will be denied. Rather than simply submit the evidence requested, you will need to determine what evidence could sway the decision based on the denial reasons listed in the NOID.
- Lastly, you will likely be given a longer time to respond to an RFE than you would for a NOID.
What to Do If You’ve Received an RFE
The first thing you should do if you get an RFE is to take it to your immigration attorney immediately. You will likely need to produce the requested documents or evidence in order to respond to the RFE. Officially, there are three ways to respond:
- Full response – provide all of the requested evidence
- Partial response – provide some of the requested evidence
- Withdraw the petition
It is important to note that giving a partial response will not necessarily automatically mean that your petition will be rejected. In the same vein, giving a full response will not guarantee that your petition will be approved. In any case, submitting some evidence is usually preferable to submitting nothing or withdrawing the petition.
You will have a narrow window of time to respond to the RFE, which is why you and your attorney should act quickly to be able to submit a response in time. If your visa is eligible for it, filing with premium processing can shorten the adjudication time, though it will not increase your chances of being approved.
What to Do If You’ve Received a NOID
Like with the RFE, it’s important not to panic if you’ve received a NOID. Getting this notice does not automatically mean that your case is denied. The notice is being issued to give you a change to salvage the case.
Usually, the USCIS gives you 30 days to respond. The best suggestion is to immediately take the NOID to your immigration attorney to make sure that every aspect of the notice is addressed before sending the response. Here is where it differs from an RFE, you will likely need to submit evidence that addresses each issue of the NOID. Partial responses often result in denials.
What About a NOIR?
In some cases, if you have petitioned for a visa and have received an approval and the USCIS has come upon evidence that your case may be fraudulent, you may be issued a Notice of Intent to Revoke. This functions similarly to a NOID in the fact that you will be given a list of reasons for why your visa will be revoked. Work with your immigration attorney to determine how to respond in a way that will save your case.
Denials After RFE or NOID
If, after you and your attorney have properly responded to either an RFE or a NOID in the allotted time, you still receive a rejection or denial, then you will need to decide what to do next. Depending on the type of visa that you applied for, you may be able to choose from the following options:
- Appealing the decision with the Administrative Appeals Office (AAO)
- Some visas, such as the H-1B visa, do not allow petitioners to appeal after a rejection or denial
- Making a legal motion to reconsider or reopen your case
- A motion to reopen is when new evidence has come to light that may change the evaluating officer’s mind if the case were to be reopened.
- A motion to reconsider is when you and your attorney believe the denial or rejection to be incorrect. You will need to prove through legal means that this is the case.
- Refile the petition
- If your petition was rejected on account of a simple error, you may want to consider fixing the mistake and refiling the petition. To ensure that your petition is good to go and free of errors, run it through your immigration attorney before sending it to the USCIS. Of course, you will need to submit the fees again and the initial fees will not be refunded.
- File for a different visa
- If your petition was denied because you and/or your sponsor were not eligible for the visa, you can see about filing for a different visa that better matches your immigration situation.
In any case, any decision made about a denial after a NOID or RFE should be made with careful consideration and only with the help of a qualified and specialized immigration lawyer.
How Our Immigration Attorneys Can Help
In either case, whether you receive an RFE or a NOID, it can easily be a chance for you to panic. Instead, take it to your immigration attorney that can help you handle the delicate legal natures of these actions. Your visa is an investment, and the best way to protect that investment is to put it in the hands of an expert who cares.
Here at Immi-USA, our dedicated team of immigration lawyers have decades of experience helping people handle difficult situations like RFEs and NOIDs. We also have a long track record of success in dealing with the USCIS on these cases. From filing the petition to dealing with unforeseen obstacles like these, we will be with you every step of the way.
To get in touch with one of our immigration attorneys, you can contact us by filling out this form and scheduling your consultation today.