Requests for Evidence and Notices of Intent to Deny

American law intensely regulates each nonimmigrant and immigrant status, employment authorization, parole, status adjustment, consular processing, and naturalization. A petitioner or applicant must provide the required documents to prove eligibility for an immigration benefit. The 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 mandatory evidence, regulation authorizes USCIS to deny the application. However, regulation also grants USCIS discretion to issue a request for evidence (“RFE”) or notice of intent to deny (“NOID”) before denying a petition or application. Frequently (and thankfully), 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 petition or 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 legal 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?

A request for evidence or notice 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.