What’s a NOID? No, we’re not talking about the 1980s Domino’s pizza character that was created to advertise the Domino’s promise to deliver in thirty minutes or less. A Notice of Intent to Deny, commonly referred to as a NOID, is issued by US Citizenship and Immigration Services (USCIS) after a preliminary decision to deny the applicant’s case (e.g., visa petition, work permit, adjustment of status, etc.) due to a perceived ineligibility. USCIS’s determination of ineligibility may result from insufficient evidence (i.e., little or no evidence submitted), a failure to establish that the applicant warrants a favorable exercise of discretion, a discovery of new evidence not available to the adjudicator at the time of initial approval or another reason relating to the specifics of a case. The Service therefore issues the NOID to provide the applicant a chance to remedy the insufficiency.
The NOID gives the petitioner notice of the concerns of USCIS and provides an opportunity to respond. A NOID should clearly state the reason for the proposed denial to give the petitioner sufficient information to prepare a response. The reader may be thinking that this sounds just like a Request for Evidence (RFE) but the main difference is that in the context of the NOID the Service is saying, “We want to deny this case, tell us why we shouldn’t,” while in the RFE the Service says, “Hmm, I’m not so convinced, do you have anything else to convince me?” It is subtle but it can make a huge difference in how the response is prepared. While we have addressed RFEs in the past, now we turn our attention to the NOID.
1. Don’t panic! A NOID doesn’t necessarily mean that your case will be denied
While NOIDs are issued in cases where the USCIS officer has determined that the petition is not approvable, or that new evidence has come to light making a previously approved case deniable, this doesn’t mean that the NOID cannot be overcome. The NOID allows the applicant a chance to change the adjudicator’s mind or to answer any new questions that may have arisen with a previously approved case. Therefore, receiving the NOID can be a good thing—it’s a chance to fight back. NOIDs can at times be successfully rebutted by providing additional evidence not originally submitted as well as legal arguments explaining why the applicant qualifies for the immigration benefit sought and why the case should not be denied.
2. Read the NOID thoroughly
As mentioned, NOIDs are issued in cases where USCIS believes that the applicant does not qualify for the requested immigration benefit or has uncovered new evidence that suggests an initial application was approved in error. In these situations, USCIS sends the NOID to warn the applicant that their case is going to be denied, unless sufficient evidence is submitted in response to the NOID. For this reason, it is incredibly important to read the NOID thoroughly, so that the applicant fully understands USCIS’s perceived deficiencies in their case and responds accordingly.
3. You must respond to the NOID within thirty days
The response to a NOID must be submitted within thirty days, which is not a lot of time considering the amount of additional evidence that may be required. In comparison, the maximum response time for a Request for Evidence (RFE) is eight-four days (or eighty-seven days if the RFE is served by mail). Note that it is up to the USCIS officer’s discretion to grant the maximum response time (thirty days) or a shorter period when issuing the NOID, although it is rarely less than thirty days. Extensions of time to respond are not typically permitted for NOIDs (or RFEs).
Additionally, the consequences of not sending a response are more extreme for a NOID than for an RFE. If an applicant doesn’t reply to a NOID, the application will be denied. In comparison, if an applicant doesn’t reply to an RFE, a decision will be made on the application based on the evidence that was originally submitted—this may be either a denial or an approval.
4. The stakes are higher for a NOID than for an RFE
As mentioned above, in the case of a NOID, Immigration is stating that the case will be denied unless they can be convinced otherwise. In the case of an RFE, Immigration is saying either that there is not enough information for them to make a decision, or that the materials submitted have left them with some questions they want answered. With an RFE, there is no suggestion that USCIS has an intent to deny the case—just an indication they are not entirely convinced it should be approved. The burden of proof lies with the petitioner/applicant when applying for an immigration benefit and the standard of evidence is typically “preponderance of the evidence” (meaning that the matter asserted is more likely than not to be true).
The petitioner/applicant, however, has more work cut out for them in the case of a NOID (where they have to convince USCIS to approve a case they are intending to deny) as compared with an RFE (where they have to convince USCIS to approve a case they are unsure about). In other words, a request for additional evidence requires a lower burden of persuasion in the response than a NOID. In both situations, the petitioner/applicant must convince USCIS by a preponderance of the evidence, but it is a smaller step to take from RFE to approval than it is from NOID to approval.
5. If your case is denied following the NOID, you still have options
If an applicant’s request for an immigration benefit is denied, they will receive a denial letter from USCIS explaining the reason for the denial. Some denials may be appealed to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice. The denial notice will provide information about whether the decision may be appealed and where to file the appeal. Alternatively, the applicant may file a motion to reopen or motion to reconsider if they have received an unfavorable decision, even if they do not have any appeal rights. The applicant may also file a motion regarding a decision made on an appeal.
Alternatively, the applicant can reapply for the immigration benefit originally sought. Since the denial notice includes an explanation of the reasons for the denial, these should be proactively addressed in the subsequent application. The new application should include as much evidence as possible in order to prevent a NOID (or RFE) from being issued again. In addition to submitting new evidence, the applicant should resubmit all of the previously submitted evidence, and must pay any USCIS filing fee again.
While a NOID can be overcome, it is not always a simple undertaking, much like getting a pizza delivered in thirty minutes or less. In responding to NOIDs, it’s recommended to seek the assistance of an experienced immigration attorney. For a quick pizza delivery you’re on your own.