American law intensely regulates each nonimmigrant and immigrant status, employment authorization, and parole. U.S. law also regulates status adjustment, consular processing, and naturalization. During the immigration process, an applicant must provide documents to prove eligibility for a benefit. U.S. Citizenship and Immigration Services (“USCIS”), a consular officer, or Customs and Border Protection (“CBP”) review applications and documents. When an application does not include all the evidence, regulation authorizes USCIS to deny the application. However, regulation grants USCIS discretion to issue requests for evidence (“RFE”) or notices of intent to deny (“NOID”). USCIS sends requests for evidence or notices of intent to deny before issuing a denial decision. Frequently, USCIS gives petitioners and applicants an opportunity to respond to any deficiencies.

 Must an Applicant Respond to an RFE or NOID?

U.S. regulation gives a person requesting an immigration benefit the choice to respond. A person may provide all or some of the evidence requested by USCIS. Rather than respond, a person may also withdraw the application before the RFE or NOID deadline. If a person only provides some of the evidence requested by USCIS, the agency may issue a decision based upon the evidence in the record. If a person fails to respond to an RFE or NOID, the agency may deny the application as abandoned or based upon the record.

Should a Person Withdraw an Application Rather than Respond to an RFE or NOID?        

The answer depends upon the reason why USCIS issued the notice of intent to deny or request for evidence. INA § 212(a) provides the reasons (“inadmissibility”) why an immigration officer may deny a benefit. Under some circumstances, responding to an RFE or NOID may complicate a person’s legal situation. In these scenarios, departing the U.S. may prevent more severe immigration, criminal, or civil consequences.   

If an Unrepresented Person Receives an RFE or NOID, Should the Person Hire an Attorney?

Requests for evidence or notices of intent to deny should explain the legal reasons and facts justifying why the agency may deny the benefit. If USCIS requests a basic document, such as a tax return, a person may not need a lawyer to mail a simple document to USCIS.  However, if the agency explains that a regulation suggests that the agency should deny the application, hiring an attorney may become a wise decision.