What Are NOIDs and How Do They Differ From RFEs?

Navigating the U.S. immigration process can involve receiving notices that affect your application. Two key ones are notices of intent to deny (NOIDs) and requests for evidence (RFEs).

A NOID signals that the United States Citizenship and Immigration Services (USCIS) may deny your petition unless significant clarification or evidence is provided, while an RFE requests additional or missing information to confirm your eligibility. Understanding these notices is essential, as they serve different purposes and require different responses.

In this article, we will explain NOIDs and RFEs in detail, highlight their differences, and offer tips on handling them effectively.

What Are NOIDs and Why Are They Issued?

A NOID is a formal letter from USCIS indicating that the agency plans to deny an immigration application. The evaluating officer may issue this notice for different reasons, such as when there’s insufficient evidence or documentation to support the application or when new evidence suggests a previously approved application could now be denied.

When USCIS issues a NOID, it doesn’t mean it has actually denied the application. Instead, it signifies serious concerns or potential deficiencies in the submitted application.

A NOID’s primary purpose is to formally alert petitioners that their application, in its current state, doesn’t meet their eligibility requirements. Consequently, the agency issues a NOID so that these applicants have a chance to provide additional evidence or significant clarification before USCIS makes a final decision.

In addition to providing a fair opportunity for applicants to address any concerns USCIS has, as opposed to outright denying an application, NOIDs also minimize immigration appeals, which can be lengthy and expensive.

Why Does USCIS Issue NOIDs?

USCIS issues NOIDs to ensure all approved immigration applications comply with U.S. laws. In the EB-5 Immigrant Investment Program, for instance, investors seeking a Green Card must invest at least $1.05 million in a qualifying project, or $800,000 in a project located in a targeted employment area (TEA).

Beyond meeting the investment threshold, investors must prove eligibility, a lawful source of funds, and sufficient job creation. A NOID is issued when an EB-5 petition doesn’t clearly satisfy one or more of these requirements.

The following are some common reasons USCIS may issue a NOID in the case of EB-5 applications:

• Highlighting Significant Problems in the Application – Typically, USCIS issues NOIDs when immigration officers find that an application lacks substantial evidence to prove eligibility. Rather than denying the application outright, USCIS notifies applicants of these deficiencies so that they can clarify the issues. For example, if the application fails to project job creation within a reasonable timeframe, USCIS can issue a NOID.
• Resolving Suspicions of Misrepresentation and Fraud – The EB-5 program mandates that the investor’s funds must come from lawful sources. Hence, USCIS may issue a NOID if it suspects the applicant’s funds may come from unverified or illicit sources.
• Compliance With Due Process – The law compels USCIS to treat all applicants fairly and equally. This includes offering investors an opportunity to resolve potential issues before denying any application. Essentially, in this respect, a NOID is a procedural safeguard, ensuring a fair and transparent investor process for reviewing applications.
• Confirming Project Eligibility and Regional Center Compliance – USCIS evaluates the compliance and viability of the regional centers and the specific projects related to an investor’s application. When there are concerns about the regional center’s credibility or the project’s ability to fulfill EB-5 requirements, the agency may issue a NOID.

What Are RFEs and Why Are They Issued?

An RFE is an official request from USCIS asking immigration applicants to provide additional information or documents. Importantly, an RFE doesn’t mean the agency is inclined to deny the application—all it means is that they need more information to decide. Receiving an RFE is a normal stage in the application screening process.

When they receive an I-526E petition, evaluation officers must closely review every aspect of the investment, the job creation, and the eligibility criteria to ensure compliance with the program’s requirements. When they are unsure of an investor’s eligibility, they ask for additional evidence for applicants to strengthen their case and prove their eligibility.

Why Does USCIS Issue RFEs?

USCIS issues an RFE when more information or documents are needed to verify an immigration request. According to the USCIS manual, an RFE is the next step if the submitted documents aren’t enough to make a clear decision. For instance, when primary evidence is insufficient, USCIS might request secondary evidence or even an in-person interview.

The following are some of the main reasons USCIS may issue an RFE:

• Verification of Source of Funds – USCIS must confirm that applicants for the EB-5 visa program invested legal funds. The agency can issue an RFE when the documents are incomplete, unclear, or insufficient to prove that the investor acquired the capital legally. This is crucial to ensure that investment funds are not associated with illicit activities.
• Confirmation of Job Creation – To qualify for an EB-5 visa, investors must create at least 10 full-time jobs for workers in the U.S. Hence, when the initial documents are unclear about job creation or lack actionable business plans, economic analyses, or employment records, USCIS may issue an RFE. These requirements are generally easier to fulfill when working with a reputable EB-5 regional center.
• Ensuring Capital Risk Requirement – The EB-5 program requires that investors’ capital be “at risk” throughout the investment period. As a result, if the evaluation officer suspects any arrangement that does not comply with this requirement, USCIS can issue an RFE for additional evidence to confirm that the funds are genuinely at risk.

Key Differences Between NOIDs and RFEs

USCIS can issue a NOID or an RFE when there are concerns about the petitioner’s eligibility. However, they don’t mean the same thing, as they differ in their purpose, severity, and implications for the investor. Here are the key differences between NOIDs and RFEs.

Purpose of the Notice

NOIDs give investors a final opportunity to plead their case and clarify the serious concerns that USCIS has regarding their petitions. The notice outlines the specific reasons why USCIS intends to deny the petition and allows the applicant to address these significant deficiencies comprehensively.

An RFE requires an investor to clarify or provide substantial evidence to meet the adjudication requirements. The notice seeks to obtain additional documents related to specific aspects of a petition.

Severity and Complications

A NOID is a serious notice indicating that USCIS has substantial grounds to deny a petition based on the current evidence. So, if the investor doesn’t provide compelling new evidence or arguments, USCIS will deny the application.

RFEs generally suggest that the petition could still meet eligibility requirements—it just lacks information on certain aspects necessary for the evaluation to proceed. Once the investor provides the missing details, as long as these new details meet the program’s requirements, there’s still a high chance that USCIS will approve the petition.

Response Timeline and Content

Although exact timelines can vary, NOIDs are typically more time sensitive—investors have about 30 days to respond to the notice. This response is usually the final opportunity to save the application. Subsequently, investors need a strong defense or substantial evidence to counter USCIS’s reasons for the intended denial.

Conversely, when investors receive RFEs, they usually have about 87 days to respond. This response often focuses on supplementing existing information for clarification. The investor can provide any missing information or required evidence, such as detailed financial records or job creation data.

Tips for Responding to NOIDs and RFEs

Responding to a NOID or RFE requires a thorough, strategic, and well-documented approach. Here are some tips for crafting an effective response to ensure that USCIS has the information needed to approve the petition.

• It is always advisable to consult legal professionals to determine the severity of the issues and to help you respond to them.
• It can help to carefully read through the notice to understand what USCIS requires. If it’s a NOID, you can analyze the issues raised. For RFEs, pay attention to the specific documents or clarifications needed.
• Your immigration lawyer will prepare a strong response that addresses all the concerns raised in the notice. Remember that each case is unique, and the concerns raised vary depending on the specific circumstances. Provide the documents required and gather sufficient evidence to plead your case.
• Ensure that your response aligns with the information in the submitted EB-5 petition. Inconsistencies can weaken an application’s credibility and raise new questions, which could lead to additional notices or denial.
• Familiarize yourself with current USCIS guidelines and EB-5 program requirements. Responses that clearly demonstrate an understanding of these regulations are more likely to be successful.
• Plan accordingly and avoid last-minute submissions. Adhering to the deadlines is essential, as failing to respond on time can lead to a denial.

Stay Ahead of Potential RFEs and NOIDs With EB5AN

Avoiding NOIDs and RFEs in the EB-5 visa process is beneficial, reducing delays and contributing to a smooth path toward approval. Anticipating and proactively addressing USCIS concerns helps investors submit complete and compelling petitions. For this, the most important strategies involve choosing a strong EB-5 project from the beginning, ensuring timely and complete petition filing, and working with the right professionals. Retaining an experienced immigration attorney should be the first step of your EB-5 journey.

Working with reputable regional centers can also reduce risks. Typically, established regional centers are well-versed in USCIS’s requirements, minimizing the chance of issues that could lead to a NOID or RFE.

Our expert team at EB5AN can help you stay prepared and proactive for a smoother immigration process. We have helped more than 2,300 families from over 60 countries relocate to the U.S. as lawful permanent residents.

If you have any questions about the various stages of the EB-5 process, reach out for a free consultation with our team.