If you are in the process of obtaining an immigration benefit, USCIS will often issue Requests for Evidence (RFE). Requests for Evidence are a normal and expected part of the process. Sometimes, however, when you provide a response to a Request for Evidence, USCIS then issues something called a Notice of Intent to Deny (NOID). The most important thing to know is that a NOID can turn into an approval.
Notice of Intent to Deny (NOID)
USCIS may issue a denial without an RFE or NOID, however, often USCIS will issue a Notice of Intent to Deny (NOID) to give you the opportunity to resolve any discrepancies, provide explanations, or provide additional documents that would support your application. See 8 CFR § 103.2.
Although USCIS is not under an obligation to issue a NOID, the USCIS Policy Manual under 1 USCIS-PM, Pt. E, Ch.6.F.3 USCIS notes that “If the benefit requestor either has not submitted all of the required initial evidence…or the evidence in the record does not establish eligibility for the benefit sought, the officer should issue an RFE or NOID…unless the officer determines that there is no legal basis for the benefit request and no possibility that additional information or explanation will establish the legal basis for approval”.
Consider a NOID as an opportunity to present additional evidence on your case, and work with your immigration lawyer to identify all the points raised in the NOID, responding to each concern laid out in the NOID. Doing so can help ensure a positive outcome for your immigration petition or application.
Derogatory Information
Sometimes a NOID will indicate that USCIS has derogatory information regarding an applicant or petitioner. Where an application will be denied based on adverse or derogatory information, the petitioner must be given notice and an opportunity to rebut the evidence. 8 CFR § 103.2(b)(16)(i). In Ilyabaev v. Kane, 847 F.Supp.2d 1168 (D. Ariz. 2012) the court found that USCIS was required to provide notice of revocation of I-140 and denial of I-485 to beneficiary of I-140 because he was also an applicant under the regulation due to his I-485.
If an application is denied based on derogatory information, that evidence must be part of the record. Matter of Pradieu, 19 I&N Dec. 419 (BIA 1986). The NOID should refer to this derogatory evidence, and it is important to respond to all derogatory information. Sometimes USCIS believes information is derogatory, when in fact it is not. Sometimes derogatory information exists, but it does not affect the overall eligibility of the benefit being sought. Therefore, the assistance of an immigration attorney is needed.
Immigration Inadmissibility
If an individual is seeking an immigration benefit, such as a green card, they must be “admissible.” Immigration laws regarding admissibility cover areas such as prior immigration violations, unlawful presence, misrepresentations and criminal history. If USCIS is making an allegation of inadmissibility, it is important to discuss your case with an immigration lawyer.
Sometimes USCIS makes an incorrect inadmissibility finding. In these scenarios, an explanation of why the person is admissible based on immigration regulations is helpful. In other scenarios, it may be undisputed that a person is inadmissible. In these situations, a Notice of Intent to Deny (NOID) is your opportunity to file an I-601 Waiver of Grounds of Inadmissibility. An inadmissibility waiver is a complex process that requires a showing of eligibility to have the inadmissibility “forgiven.” In other scenarios, individuals are accused of making a misrepresentation when in fact, there was no misrepresentation. A NOID is an opportunity to explain why the prior statement was not a misrepresentation in accordance with immigration laws.
Standard and Burden of Proof
Sometimes, USCIS believes there is insufficient evidence to approve a case, but USCIS misunderstands the standard of proof. In these scenarios it is important to remind USCIS what the standard of proof is. Specifically, it is important to remind USCIS that the applicant or petitioner is not required to establish eligibility “beyond a reasonable doubt”. Instead, the standard of proof is a preponderance of the evidence. See Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/2 (Feb. 16, 2005), AILA Doc. No. 05021810 (rescinding May 4, 2004 memo) [“Adjudicators too often issue an RFE for additional types of evidence that could tend to eliminate all doubt and all possibility for fraud”].
Our office usually summarizes the standard of proof to USCIS adjudicators by noting that even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is “probably true” or “more likely than not,” then the benefit requestor has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than fifty percent probability of something occurring).
Conclusion
Receiving a Notice of Intent to Deny from USCIS may look scary, but often these are issued in the regular course of adjudicating an immigration benefit. Treat the NOID as an opportunity to explain the facts of your case and how they apply to the laws of the benefit being sought. A NOID is not something you should respond to on your own, and it is highly advisable to work with an immigration attorney to help present the strongest possible case.