NOID from USCIS: What are your next steps?

Receiving a Notice of Intent to Deny (NOID) in response to a US immigration petition can be extremely disappointing and disheartening for the petitioner.

It does not, however, mean your application has been denied.

If you have received a NOID, it will be important to understand your options and what steps you need to take. Whether you are awaiting a decision on a visa petition, work permit or adjustment of status, NOIDs can be rebutted by providing additional evidence that was not included in the initial application, or by presenting legal grounds as the basis to support granting the application. The critical factor will be to act quickly and effectively within the given timeframe.

What is a NOID?

A NOID is a notice from USCIS to the petitioner that the evaluating officer plans to deny the petition on the basis of fundamental ineligibility for the visa classification being applied for.

NOIDs are issued for many different reasons. For example, they could result from insufficient evidence having been provided in support of the application, a failure to establish that the applicant warrants a favorable exercise of discretion or another reason relating to the specifics of a case, or that new evidence has come to light making a previously approved case deniable. This could be on the basis of factors such as the applicant having a criminal conviction or previous violations of US immigration laws, among others.

A NOID does not mean the application has been denied. Instead, NOIDs are issued to give notice of USCIS’s concerns and reasoning for the intended denial and to provide the applicant the chance to remedy the issues.

What does a NOID mean for your US application?

A NOID effectively means that your petition has been reviewed by a USCIS officer who considers your application should not be approved. A NOID is indication that, on the basis of the information submitted and available at the time of adjudication, a preliminary decision has been made that you do not qualify due to perceived ineligibility.

The purpose of the NOID is to share insight with the applicant into the decision-making rationale behind their petition, so as ultimately to dissuade applicants from pursuing appeals or further legal motions in respect of the application at hand.

The applicant is then invited to respond to the NOID by submitting a defense in response to the specific grounds for denial within a specified timeframe. Depending on the circumstances, for example, additional evidence may help to influence the outcome in favour of the applicant.

How does NOID differ from RFE?

While both RFEs and NOIDs provide applicants with the opportunity to provide further information and evidence, there is a clear difference in the meaning behind a Request for Further Evidence (RFE) and NOID. An RFE should be interpreted as the adjudicator being unable to decide – ‘I need more information to make a decision either way’. A NOID however is a more fixed position, less favorable position for applicants – the adjudicator is saying they want to deny the case, why should we not?

If you’ve received a NOID

While NOIDs will require you to take swift action to respond, it is important not to panic. Remember that at this stage, the application has not been denied and you are being given this opportunity to address and remedy the issues.

Through your response, you will need to ensure you are evidencing your eligibility under the relevant requirements as comprehensively as possible.

Meet the deadline

Importantly, you must also ensure you meet the stated timeframes. Generally, you will be given a period of 30 days to respond to USCIS.

When you receive the notice, be sure to make a note of the due date as it is a non-negotiable that your response is received by this deadline. In light of the pandemic, some flexibility was afforded to NOIDs issued within a specific period, so it is recommended to check and take advice to ensure you are working to the correct timeframe and if any temporary flexibilities may apply. Also, NOIDs sent by post are usually allowed a further 3 days, but again, it is worth confirming this to avoid any issues with missing the correct deadline.

If you do not respond to the NOID with convincing evidence by the deadline, you will eventually receive a Notice of Action denying your application.

Take professional advice

Given what is at stake, and the often technical nature of the issues at play and the evidentiary and procedural requirements, it is recommended to take professional advice from US immigration attorneys familiar with NOIDs and submitting objections or further evidence to USCIS. Your attorney will then advise you on the documents to compile to build your response.

Address the issues

The NOID will provide USCIS’s reasons for intended denial. This list offers critical insight into the adjudicator’s decision-making and should form the starting point for considering your options, including submitting a response to the NOID and ensuring any evidence you provide will be helpful to the adjudicator and influence the decision in your favour.

Your response must specifically address each of the issues that have been raised as the basis for a potential denial of your petition. Partial responses are typically not sufficient to sway the decision in your favour. It is not worth leaving anything to chance or making assumptions about the adjudicating officer’s knowledge or understanding in relation to your application. This will entail gathering and submitting extensive evidence in respect of each separate reason stated within the NOID.

Compile your documents

You should expect to take an ‘over-evidencing’ approach to building your response. Depending on your circumstances and the issues with the application, documents could be needed in relation to previous marriages, or qualifications from early on in your education or career. This may mean sourcing additional supporting documentation from third parties, which can be time-consuming.

Provided they are relevant, there are no restrictions on the volume or kind of documents you can submit to support your application, so your lawyer may also recommend other, less obvious documents, based on their experience and knowledge of the NOID process.

Update relevant documents

As well as providing new documents, you may also need to review and revise documents that have already been submitted, if they have not been adequate in communicating certain information. For example, if you are applying for the E-2 investor visa, your business plan may require revision in areas such as financial forecasting or budgets. If this is the case, ensure the updates and changes are included within a schedule or referenced in the covering letter for clarity.

Submit a covering letter

It is likely that the response will be a substantial bundle of documents. The covering letter plays an important role in providing clarification as to the content of the new evidence, including new documentation and clarifying any changes or revisions being submitted to documents that have already been considered as part of processing.

Await the decision

Once USCIS has received your response, they will resume processing. Using the additional evidence, a decision will then be made and you will be informed of the outcome once decided.

Note that NOIDs can take months, and in some cases years, to process.

This is likely to impact your plans to travel to or remain in the US. For example, while the application is pending, you may need to apply to extend existing authorizations to retain lawful status. These applications must be made on time.

Denied application after NOID

If your petition is denied after responding to the NOID, your options will vary depending on the type of visa you are applying for.

The denial notice will provide information about whether the decision may be appealed and where to file the appeal.

Taking professional advice will help you to understand your options, and follow any process you opt to pursue.

For example, you may be able to refile your application, make a legal motion to reopen your case, appeal to the Administrative Appeals Office (AAO) or Board of Immigration Appeals, or consider alternative immigration options.

Note that refiling the petition will only be an option if the rejection was on the basis of a minor error, and you will have to pay the filing fee(s) again.

Do you have a question about a NOID?

Having already invested in your application, receiving a NOID can be incredibly stressful for applicants, particularly where other plans are contingent on securing the immigration benefit.

Our specialist US immigration attorneys have extensive experience advising applicants on their options when facing a NOID.

This article does not constitute direct legal advice and is for informational purposes only.