Every year, millions of people who seek green cards lose out when their adjustment of status applications are denied. U.S. Citizenship and Immigration Services (USCIS) issues about a million green cards a year. Although this seems like a lot, the department receives about six million applications.
The statistics suggest the odds are stacked against your I-485 adjustment of status application. Nevertheless, many of these applications are speculative. Don’t give up immediately if you are unlucky.
The denial of a green card does not always mean you have a weak case. Some applicants make basic errors in filing paperwork, particularly if they did not use an experienced immigration lawyer. In certain cases, consider asking for a review of your case or even start over.
This is often an extremely stressful process. If you moved to the United States on a K-1 fiancé visa, a work-based visa, or as a refugee or an asylum seeker, you may have to leave the country. USCIS will send you into removal proceedings if your visa is expiring. You have a chance to argue your case in front of a judge.
Applicants whose adjustment of status claims are denied are faced with a few options. Firstly, weigh up the strength of your case. If you are applying for a green card as the spouse of a U.S. citizen you are an immediate relative which gives you a stronger case for permanent residency than the spouse of a green card holder.
Consider the following avenues if adjustment of status is denied:
1. A Motion to Reconsider or Reopen.
Your immigration lawyer can file a motion to USCIS to reconsider or reopen your case. Given that your first adjustment of status application has been denied, It’s advisable to hire an attorney.
Motions to reconsider are typically filed when applicants and their lawyers believe USCIS officials may have denied Form I-485 in error. Mistakes happen, particularly in recent years with federal offices suffering from chronic understaffing. If you can point to a legal or a factual error in your application, it’s worth filing a motion to reconsider.
A motion to reopen is slightly different. You should consider this option if new evidence comes to light that was unavailable to the immigration authorities at the time of the determination. You must have been unaware of the evidence at the time of the application. You can’t file a motion to reopen because you forgot to submit evidence the first time. Applicants should show they were unable to originally submit evidence that might have a bearing on their application.
2. Seek a Review by the Administrative Appeals Office
USCIS points out there is no mechanism to appeal denial of adjustment of status, and few exceptions. However, USCIS can certify your case for review by the Administrative Appeals Office. This entails the transfer of your case away from immigration authorities to a different department. There is no scope to submit additional evidence so this avenue is only useful if you believe USCIS made an error.
3. Re-file an Application
If your visa allows you to stay in the United States post denial of status, you may be able to re-file the I-485 form. This gives people whose applications have been rejected the chance to start over. Ideally, talk with a lawyer about how your application can be improved. The I-129F form used to petition to bring your fiancé on a K-1 visa and their children (K-2) to the U.S may have to be re-filed if it was revoked; likewise an I-130 Petition for Alien Relative. Aim to include new evidence in a re-filing to minimize your chances of another rejection.
Many applications can be cleaned up and improved. In certain cases such as USCIS’s discovery of a criminal record or evidence that your marriage was fraudulent, re-filing an application will make no difference.
4. Request Reconsideration of Denial for a Judge
Applicants or their lawyers may request reconsideration of denial of adjustment of status by a judge. This is a long-shot avenue that’s rarely used. If you lack the status needed to remain in the United States, you will receive a Notice to Appear before a judge to start the removal process.
You can present your case in court. You need to submit the same documents you used on the original I-485 application but get the opportunity to bring new evidence to the court or to bring witnesses to testify on your behalf.
If your adjustment of status was denied it’s not the end of the world but you should act quickly to rectify the issue. Talk to an immigration lawyer as soon as possible about what action to take. At Gardner & Mendoza, our team represents people whose green card applications have been denied. Our legal team understands what a stressful process this is. We work closely with you to achieve a favorable resolution where possible. Call us at (757) 464-9224.
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