You filed your petition or application with USCIS (U.S. Citizenship and Immigration Services) and you’ve waited – and waited. Maybe you’ve had an in-person interview with USCIS. Now you’re hoping and expecting an approval to arrive. Instead you receive one of these letters:
- Request for Initial and/ or Additional Evidence – commonly called an RFE or Request for Evidence;
- Notice of Intent to Deny – or NOID
What should you do? You’ll be given a maximum of 12 weeks to respond to an RFE (30 days in the case of an I-539 RFE) and a maximum of only 30 days to respond to a NOID, with an extra 3 days if it was sent by mail. The government must receive your response by those deadlines, and the deadlines are serious. If you have an immigration attorney s/he will also receive a copy of the RFE and should immediately contact you. If you don’t have an immigration attorney it’s time to get one – fast. You’ll have a lot of work to do to gather the detailed evidence you need. Also, an attorney may add legal arguments in support of your application.
Request for Evidence. An RFE is a written notice that asks for missing initial or additional evidence in support of an immigration petition or application, such as an I-130, I-129, I-129F, I-140, I-539, N-400 etc. Under the Trump administration USCIS has greatly increased the number of RFEs it issues in every benefit category – business, family, and more; it’s a way to discourage, delay and deny immigration applications. You’re in good company if you receive one but that doesn’t make a response easier.
Occasionally an RFE is easy to respond to. For example, if you submitted a foreign language document without a translation, USCIS will ask for a translation, and a translation certificate with specific wording. Or USCIS may need a marriage or birth certificate. Sometimes an RFE asks for items you’ve already submitted and you may need to submit them again or add more evidence. RFEs should raise issues specific to your case, and ask for evidence regarding that issue.
The correct response to an RFE is to provide details, details and details regarding questions USCIS raises. Don’t just send a letter or statement explaining the issue. USCIS wants to see objective, substantive evidence. For example, in one of our cases for a change from visitor to student status, USCIS asked for evidence about the applicant’s immigration status (a common USCIS concern) as follows:
Maintaining Status: Provide the following evidence to establish that you were in valid nonimmigrant status at the time your Form I-539 application was filed: Submit a detailed, chronological list (with exact from- to dates) of all the activities in which you’ve engaged since being admitted to the United States. For example, if you were engaged in tourist activities, include all the towns and cities and tourist attractions, such as parks and museums that you have visited. If you were visiting a friend or relative, provide the name and address of the person and the dates visited. Provide documentary evidence thereof, including receipts, bank statements, credit card statements, hotel invoices, rent receipts, and affidavits from those you have visited.
In response, we sent a 3-page chart showing in detail the applicant’s activities for almost a year from the time of entry into the U.S; photos to document her activities, and over 6 statements from U.S. citizens also verifying her activities. This was only one issue raised in the RFE request but the point is to examine every sentence and word carefully and to respond to every point made. The response is normally long – not just one page, but possibly 50-100 pages of evidence to support your case.
Notice of Intent to Deny. A NOID is a written notice from USCIS notifying the applicant or petitioner of its intent to deny the immigrant benefit requested – such as naturalization, a green card, or H-1B visa – and giving you the opportunity to explain why USCIS should NOT deny it. According to a 2005 USCIS memo, “a NOID is more appropriate than a RFE when initial evidence is predominantly present, but: the filing does not appear to establish eligibility by the preponderance of the evidence; the case appears to be ineligible for approval but not necessarily incurable; or the adjudicator intends to rely for denial on evidence not submitted by the filer.” For example, USCIS may send an investigator to the home of marriage-based applicants and decide the marriage does not look genuine; in this case a NOID should be issued.
NOIDs are normally very specific, referring to the evidence in the case and the reason/s USCIS finds this evidence problematic. Again, the appropriate response is to provide detailed evidence to counter what USCIS argues, and present legal arguments in support. See an attorney if you didn’t have one to represent you already.
RFE and NOID responses are a lot of work; see an attorney as soon as you receive the notice if you want a chance at submitting a response that might persuade USCIS to approve your petition or application.
