Getting any application denied by USCIS can be heartbreaking. It can be particularly tough with the extensive process associated with a Form I-485, Application to Register Permanent Residence or Adjust Status. You likely spent a lot of time and money getting all of your documents ready to file and preparing for your interview. Fortunately, denial does not mean that all hope is lost.
Depending on each person’s situation and the reasons for the denial, the following are details about the different options that applicants may be able to try in the event of an I-485 denial.
A Motion to Reconsider or Reopen
A Motion to Reconsider and a Motion to Reopen (I-290 B) are two similar but distinct motions that can each be filed with USCIS.
- A Motion to Reconsider is based on the evidence present when the case was originally filed. If applicants can prove that USCIS committed a legal or factual error when denying the application, USCIS may reverse the decision and issue applicants green cards.
- A Motion to Reopen presents new facts, evidence, or a change in law or policy that demonstrates the adverse decision was incorrect. This must be new evidence that the individual was unaware of prior to the initial application, and applicants will need to convince USICS that they were unable to submit this evidence originally.
You should only file for the Motion to Reopen and Motion to Reconsider if you meet the requirements and qualifications for both. Each motion is based on a different set of criteria therefore they are determined separately, and you must provide a basis for both.
How Long Do I Have to File a Motion to Reconsider/Reopen?
Form I290B must be filed within 30 days of a USCIS or DOL decision. If the denial notice was received in the mail, you will have 3 extra days for a total of 33 days from the date of denial to file a motion.
Usually, the I-290B is decided within 2 months, and if approved the I-765 and I-131 are reinstated. However, the actual time may vary as the Motions are processed in the order in which they are received. To check the status of your motion, contact the USCIS Contact Center at 800-375-5283 and ask for a “service request.”
Appeal to AAO
Another option for I-485 applicants is to appeal their denial to the Administrative Appeals Office (AAO). Appealing to the AAO means taking your case out of the hands of the original officer who handled your case and asking a different, though related office to reconsider your application. Keep in mind, that this only makes sense if you believe that an error was made in your case because you will not be allowed to introduce new evidence through this appeal.
Appeals to the AAO must be filed within 30 days (33 days if you received the denial letter in the mail).
What is the Process for AAO Appeals?
The administrative appeals process has two stages:
- The initial field review, and
- If necessary, the AAO appellate review.
First, the office that issued the unfavorable decision will conduct an “initial field review: This can take up to 45 days. If the office decides not to take favorable action, it will forward the appeal to the AAO. Essentially, another officer will look at the same evidence initially sent to the previous officer and determine whether to take action favorable to the immigrant. This can take up to 6 months (or longer) from the time it receives a complete case record after the initial field review. When appealing to AAO, another officer will look at the same evidence initially sent to the previous officer and determine whether to take action favorable to the immigrant.
Unfortunately, officers rarely decide to reverse the first officer’s decision. Because the chance of securing a different outcome through the appeal is so unlikely in most cases, attorneys typically avoid this option and opt for re-filing.
Refile with a New Green Card Application
Most adjustment of status denials are made "without prejudice," meaning you can file another application for a green card. This can actually be easier than filing a request for review, because you're not asking USCIS to admit a mistake. Re-filing gives individuals the chance to start the process from the very beginning, which can give them the ability to build a stronger foundation before re-submitting.
If U.S. Citizenship and Immigration Services (USCIS) approves the petition filed by your U.S. fiancé or spouse (on Form I-129F or I-130) to help you immigrate, but then denies your application for a green card via adjustment of status (on Form I-485), the next steps can be complicated. If USCIS did not revoke or deny your family petition (the I-129F or I-130) then, in Immigration Court, you will have an opportunity to "renew" your application for adjustment of status. This means that you can give the same I-485 to the immigration judge and present your case without needing to file a new petition or pay application fees again.
It is important to note that you'll need to make sure that you've cleared up whatever underlying problem caused your adjustment of status application to be denied in the first place. Keep in mind that if you're clearly inadmissible because of a criminal record, or USCIS has obtained convincing evidence that your marriage is fraudulent (and it really is), neither appeals nor further applications are likely to help much.
Request Reconsideration from a Judge
This option is typically the last resort, as it may put the applicant at risk of deportation. If you do not have any other form of status outside of the I-485 application, allowing you to stay, you will likely receive a Notice to Appear. You will appear before an Immigration Judge for removal proceedings to tell the judge that you want to adjust your status as a defense from removal at this hearing.
At this hearing, applicants will need to submit the same documents they initially submitted when applying with the first I-485, but you can also bring any additional evidence (including witnesses) that you think will help your case be stronger. After you present all evidence, the judge will make the decision and if the judge approves it, you will finally get a green card.
What Choice is Right for You?
No matter which option you think is best, we recommend you speak with an experienced immigration attorney first. An experienced immigration lawyer can help you understand your options and the best solution for your case. For example, you may be able to opt for other immigration options or make a legal motion to reopen your case – these routes can lead to your petition’s approval after NOID. Which option you end up taking is up to you.
We can only recommend that you get an experienced immigration attorney to help you every step of the way. An experienced immigration attorney will best be able to pinpoint where the initial application failed and what it would take to succeed moving forward. For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone, and we will fight for you. To schedule an initial consultation with Yekrangi & Associates today, do not hesitate to contact us at (949) 478-4963.