USCIS RFEs and NOIDs: Why Eligibility Alone Is No Longer Enough

Over the past year, many applicants—particularly those from countries subject to heightened scrutiny, including Iran—have observed a clear and consequential shift in the tone and substance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by U.S. Citizenship and Immigration Services (USCIS). These notices increasingly extend beyond requests for missing documents or narrow clarification of statutory eligibility. Instead, they frequently preview a broader and more decisive inquiry: whether the applicant merits a favorable exercise of discretion.

This development is neither anecdotal nor incidental. It is firmly grounded in USCIS’s formal adjudicatory framework, as articulated in Chapter 8 of the USCIS Policy Manual, which governs discretionary analysis. Understanding this framework has become essential to responding effectively to USCIS RFEs or NOIDs—particularly in cases involving heightened scrutiny.

Discretion Is a Separate and Independent Adjudicatory Step

Under USCIS policy, many immigration benefits are discretionary by statute or regulation. For these benefits, adjudication does not end once an applicant satisfies the threshold eligibility requirements. Eligibility is only the first step.

USCIS officers are instructed to conduct a separate discretionary analysis after determining eligibility. In this analysis, officers must evaluate all relevant facts and circumstances of the individual case, weigh positive factors against negative factors, and assess the totality of the record. There is no exhaustive list of factors, and discretion may not be exercised arbitrarily, inconsistently, or based on assumptions or bias.

Critically, USCIS policy permits denial as a matter of discretion, even where eligibility appears to be satisfied. Although officers are generally expected to analyze eligibility before discretion, a discretionary denial may still stand independently. This explains why modern RFEs and NOIDs increasingly resemble legal analyses rather than administrative checklists.

RFEs and NOIDs Are Increasingly Discretion-Driven

Historically, many RFEs were primarily evidentiary—focused on missing documents, outdated forms, or insufficient proof of a specific element. While such RFEs still exist, a growing number now signal deeper concerns related to credibility, compliance, intent, or discretionary judgment.

NOIDs, in particular, have evolved into procedural instruments through which USCIS outlines the theory of a discretionary denial before issuing it. These notices frequently request evidence well beyond statutory eligibility, including:

• Evidence of good moral character and respect for law

• Community ties, employment history, and tax compliance

• Explanations addressing perceived inconsistencies or credibility concerns

• Evidence mitigating country-specific or security-related considerations

  
  

In practice, modern NOIDs function as pre-denial briefs, offering the applicant an opportunity to rebut discretionary concerns before a final adverse decision is entered.

Which Immigration Benefits Involve Discretion?

One of the most misunderstood aspects of USCIS adjudication is which benefits are discretionary and which are not. Chapter 8 of the Policy Manual provides a non-exhaustive but highly instructive overview. Importantly, many of the benefits most frequently associated with RFEs and NOIDs do involve discretion.

Common Immigration Benefits Involving Discretionary Review

Discretion is involved in adjudicating, among others:

• Change or Extension of Nonimmigrant Status (Form I-539)

• Advance Permission to Enter as a Nonimmigrant (Form I-192)

• Humanitarian Parole and Initial Parole Documents (Form I-131)

• International Entrepreneur Parole

• Temporary Protected Status (TPS)

• Refugee Status (with certain exceptions)

• Asylum

• Adjustment of Status (Form I-485), with statutory exceptions

• Waivers of Inadmissibility (Forms I-601, I-601A, I-602)

• Consent to Reapply for Admission After Removal (Form I-212)

• Employment Authorization (Form I-765), in many contexts

• Certain waiver-based removals of conditions on permanent residence (Form I-751)

By contrast, most family-based and employment-based immigrant petitions, naturalization applications, and certificates of citizenship are generally non-discretionary, although limited exceptions apply in specific contexts.

This distinction is critical: RFEs and NOIDs increasingly arise precisely in discretionary benefit categories, where USCIS has legal authority to deny a request even after eligibility is established.

How USCIS Conducts Discretionary Analysis

USCIS instructs officers to follow a structured three-step process when adjudicating discretionary benefits:

1) fact-finding,

2) determination of threshold eligibility, and

3) discretionary analysis.

Satisfaction of statutory or regulatory eligibility requirements does not conclude the adjudication where discretion is involved; rather, it triggers a separate and independent evaluation of whether the benefit should be granted as a matter of discretion.

During the discretionary analysis, officers must identify and weigh all relevant positive and negative factors, considering them both individually and cumulatively under the totality of the circumstances. There is no point system and no fixed weighting. As USCIS has expressly stated, “[t]here is no formula for determining the weight to be given a specific positive or negative factor. The weight given to each factor may vary depending on the facts of a particular case as well as the relationship of the factor to the other factors in the analysis.” As negative factors become more serious, USCIS may require “unusual or outstanding equities” to warrant approval. Conversely, where negative factors are minimal or absent, discretion should ordinarily be exercised favorably.

This framework explains why modern RFEs and NOIDs increasingly move beyond narrow eligibility issues and instead engage in a holistic assessment of the applicant’s conduct, credibility, compliance history, and overall equities. Effective advocacy must therefore address not only whether eligibility has been established, but how the discretionary balance should be resolved in the applicant’s favor.

Discretionary Factors USCIS May Consider

USCIS policy authorizes adjudicators to consider a broad and non-exhaustive range of factors when exercising discretion. These factors are not evaluated in isolation; rather, officers assess how they interact cumulatively under the totality of the circumstances.

Positive discretionary factors may include, among others:

• Family ties in the United States

• Length and lawfulness of residence in the United States

• Employment history and economic contribution

• Tax compliance

• Community involvement or service

• Evidence of rehabilitation, where applicable

• Serious medical conditions or ongoing medical treatment

• Ownership of property or business interests

• Evidence of character or trustworthiness, including letters of support, professional recognition, or awards

Negative discretionary factors may include, among others:

• Identity credibility concerns, including use of aliases or inability to verify identity

• Noncompliance with prior immigration obligations

• Criminal history, including conduct that did not result in a conviction

• Public safety or national security concerns

• Prior fraud, misrepresentation, or false testimony

• Conduct inconsistent with prior nonimmigrant intent

• Country-specific considerations arising from geopolitical, security, or diplomatic factors

This list is expressly non-exhaustive. USCIS retains broad discretion to consider any fact it deems relevant to the applicant’s character, conduct, or equities. Accordingly, applicants and practitioners must assume that discretionary review will encompass more than formal statutory violations and should proactively address both favorable equities and potential adverse inferences in the record.

Country-Specific Factors and Heightened Scrutiny in Practice

USCIS’s application of country-specific considerations is no longer theoretical. Recent Notices of Intent to Deny issued by USCIS show a consistent pattern in how these factors are applied in discretionary adjudications, including for benefits adjudicated inside the United States.

In these notices, USCIS invokes Presidential Proclamation 10949, issued under INA § 212(f), and acknowledges that while the Proclamation applies to individuals seeking entry, the agency has nevertheless assessed Proclamation-related restrictions in relation to discretionary immigration benefit requests for extension of stay (EOS) and change of status (COS). USCIS then concludes that the applicant’s positive discretionary factors do not outweigh the country-specific negative discretionary factors identified in the record and indicates its intent to deny the application as a matter of discretion, independent of threshold eligibility concerns.

This language reflects a consistent adjudicatory approach in which country-specific considerations are weighed as part of an individualized discretionary analysis, rather than applied as categorical bars. Notably, USCIS does not deny cases solely on the basis of nationality. Instead, nationality functions as a contextual factor that—when combined with other case-specific facts—may weigh negatively in the discretionary balance, subject to rebuttal. Recent adjudicatory practice further reflects that individuals born in countries subject to heightened review may remain subject to enhanced discretionary screening, even where they later acquired citizenship in a non-listed country and now hold dual nationality, reinforcing the individualized—but heightened—nature of the discretionary inquiry.

As this language becomes increasingly common, effective responses must be structured to address not only statutory eligibility but also the discretionary balancing USCIS is expressly undertaking in these cases.

Why Checklist Responses Are Failing

Given this framework, responding to an RFE or NOID by merely uploading documents—without addressing discretion directly—is often insufficient. USCIS policy requires officers who deny a case as a matter of discretion to identify specific positive and negative factors, explain how those factors were weighed, and articulate why the negative factors outweigh the positive ones under the totality of the circumstances.

Checklist-style responses typically fail because they focus exclusively on eligibility mechanics, while leaving USCIS’s discretionary concerns unanswered. In many cases, applicants submit requested documents without explaining why those documents matter in the discretionary analysis, how they mitigate identified risks, or how they contribute to a favorable balancing of equities.

When an applicant fails to affirmatively develop the discretionary record, USCIS is left with little more than the negative factors already identified in the notice. At that point, the officer’s task becomes straightforward: the record reflects unresolved discretionary concerns, an absence of countervailing equities, and no coherent narrative supporting a favorable exercise of discretion. Under these circumstances, denial is not only permissible—it is procedurally supported.

Effective responses, by contrast, recognize that an RFE or NOID is not merely a request for evidence but an opportunity to shape the discretionary analysis itself. Without that strategic framing, even technically complete submissions often fail to alter the outcome.

What Effective RFE and NOID Responses Must Do Today

In the current adjudicatory environment, effective RFE and NOID responses must be structured with the understanding that USCIS is conducting two separate analyses: threshold eligibility and discretionary judgment. A successful response therefore addresses both—explicitly and independently—rather than assuming that satisfying eligibility alone will resolve the case.

First, the response must clearly distinguish eligibility analysis from discretionary analysis. This requires demonstrating, with citation to the record, that the statutory and regulatory requirements are met, while separately addressing why the applicant warrants a favorable exercise of discretion. Conflating these two inquiries often leaves discretionary concerns unaddressed.

Second, the response must identify and directly rebut negative discretionary inferences, including those that are implied rather than expressly stated. Modern RFEs and NOIDs frequently signal concerns related to credibility, intent, compliance, or country-specific factors without labeling them as such. Effective responses recognize these signals and address them head-on, rather than limiting the submission to the narrow wording of the request.

Third, the response must proactively present affirmative discretionary equities, supported by credible, well-organized evidence. This includes, where applicable, evidence of lawful conduct, compliance with immigration requirements, community and family ties, employment history, tax compliance, academic or professional contributions, and character affidavits. The purpose is not simply to submit documents but to demonstrate how these factors weigh positively in the discretionary balance.

Fourth, the response must frame the case under the totality of the circumstances standard. USCIS does not evaluate discretionary factors in isolation or assign them numerical weight. Instead, officers assess how all positive and negative factors interact cumulatively. Effective responses, therefore, explain how the favorable equities, taken together, outweigh any negative considerations identified in the notice.

Finally, the response must build a durable administrative record capable of withstanding appellate or judicial review. USCIS policy requires officers denying a case as a matter of discretion to articulate their reasoning in writing. A well-structured response anticipates this requirement by clearly presenting the factual and legal basis for a favorable exercise of discretion, thereby shaping the record that any reviewing authority will later examine.

For these reasons, RFEs and NOIDs must now be treated as pre-denial advocacy, not routine correspondence. The outcome increasingly depends not on the volume of documents submitted, but on how effectively the response engages with USCIS’s discretionary framework and evidentiary expectations.

Practical Implications for Applicants

In light of current USCIS adjudication trends, it has become increasingly important to prepare and submit immigration applications in a manner that affirmatively addresses discretionary considerations from the outset, rather than assuming that satisfying statutory eligibility alone will be sufficient. Where discretion is involved, the initial filing often establishes the framework through which USCIS evaluates credibility, intent, compliance, and overall equities.

When discretionary factors are not meaningfully addressed in the initial submission, USCIS may later raise those concerns through an RFE or NOID. At that stage, the application is no longer being reviewed in a neutral posture; instead, the agency has already identified potential negative factors and is assessing whether those concerns can be rebutted.

For applicants who have already filed and subsequently received an RFE or NOID, it is therefore critical that the response be prepared with a full understanding of USCIS’s discretionary framework. RFEs and NOIDs must be treated as high-stakes, pre-denial advocacy, requiring careful legal analysis, strategic framing of positive equities, and a disciplined evidentiary presentation that directly engages with the concerns identified by the agency. In some cases, the timing and sequencing of discretionary evidence itself may require strategic consideration, including whether certain equities are best presented at the initial filing stage or preserved for submission in response to an RFE or NOID, depending on the specific posture and risk profile of the case.

Conclusion: Discretion Is No Longer the Exception—It Is the Battleground

USCIS’s own policy—and its real-world application—confirm what many applicants are now experiencing firsthand: discretion has moved to the center of adjudication for a wide range of immigration benefits. RFEs and NOIDs increasingly function as vehicles for discretionary denial unless carefully and strategically addressed.

At the same time, USCIS is required to articulate and document its discretionary reasoning, identifying the positive and negative factors considered and explaining how they were weighed. This requirement creates both a risk and an opportunity: when the record is incomplete or one-sided, denial is justified; when the record is fully developed and strategically framed, the discretionary analysis itself can be influenced.

Understanding—and responding within—this framework is no longer optional. It is essential.

Addressing USCIS RFEs and NOIDs in Practice

Given the central role discretion now plays in USCIS adjudications, responding to RFEs and NOIDs requires more than document submission. Effective responses must be structured to address both threshold eligibility and the discretionary analysis USCIS is required to perform, with careful attention to how positive and negative factors are presented and weighed.

Our practice regularly represents individuals facing RFEs and NOIDs across discretionary benefit categories, including change of status, adjustment of status, waivers, and other high-scrutiny filings. These matters are approached as pre-denial advocacy, with responses designed to engage directly with USCIS’s discretionary framework, develop a complete evidentiary record, and address the specific concerns raised in each notice.

Because discretionary determinations are inherently fact-specific, individuals facing an RFE or NOID should seek case-specific legal guidance before responding. If you are preparing to file a case in which discretionary factors are involved, or if you have already filed and received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) and would like your case to be reviewed, you may schedule a consultation using the link below.

This article is for general informational purposes only and does not constitute legal advice. Each case is fact-specific and should be evaluated individually. 

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