A notice of intent to deny (NOID) is a warning issued by United States Citizenship and Immigration Services (USCIS) that a problem with an EB-5 case will likely lead to the denial of an investor’s EB-5 petition.By issuing this notice, USCIS provides the petitioner with an opportunity to clarify any areas of concern. Properly responding to a NOID is crucial to the success of an EB-5 petition, so this process must be handled by competent immigration counsel in a timely manner to ensure that the issues raised are addressed fully before the response deadline.
In a NOID, USCIS lists and explains the issues of concern. Compared to a request for evidence (RFE), which is a request for missing or incomplete information, a NOID usually indicates a systemic problem with a petition. Consequently, responding to a NOID often requires extensive document revisions, supplemental third-party documentation, and similar evidence. The response deadline for NOIDs is 33 calendar days. To properly respond to a NOID, an investor must formulate a complex, comprehensive response within a tight timeframe.
In most cases, it is best to work with EB-5 professionals when compiling a NOID response. In addition to ensuring that the cover letter and accompanying exhibits address each point listed in the notice, EB-5 professionals will know which laws and regulations to highlight in support of the evidence provided.
The timely submission of the completed response is critical, as USCIS may reject a response submitted after the submission deadline. During the COVID-19 pandemic USCIS allowed greater flexibility for NOIDs issued between March 1 and May 1, 2020, adding 60 days to the deadline. While similar extensions may arise in the future, to avoid any confusion that could lead to late submission, investors must check the submission deadline that appears on the notice and confirm any extensions with immigration counsel.
While an investor can request an administrative review if their petition is denied, this involves a long waiting period. The fastest and most cost-effective option is to avoid NOIDs and RFEs by following EB-5 industry best practices and to submit effective responses when they do crop up.
