Throughout his 2016 presidential campaign and during his current presidential term, Donald Trump has attracted much attention to the phrase “build the wall.” While we always knew it was unlikely to come into fruition, what many Americans failed to see was the “invisible wall” the Trump administration has managed to build over the almost four years of voluminous policy driven regulations and executive orders impeding U.S. immigration as we once knew it.
Over the course of 2020, while the focus of the media and immigration activists has been on the Trump Administration’s various anti-immigrant actions to shut down immigration from abroad, the same level of animosity toward immigrant applications has insidiously seeped into the adjudications issued through the U.S. Citizenship and Immigration Services (USCIS).
It has taken several years to fully implement the clear anti-immigrant policies at USCIS that the Administration has intended to utilize, but it seems clear after a litany of aggressive denials over the Summer of 2020 that the message has reached the USCIS rank and file responsible for deciding green cards: find a way to deny by any means possible. Aside from introducing policies that became in February of 2020 adding additional scrutiny to public charge determinations, the Trump administration has now began to use its discretion to make an already complicated process more difficult for hopeful immigrants.
USCIS previously issued a Policy Memorandum back in July of 2018 which provided an adjudicator with substantial discretion to deny an application or petition when initial evidence was lacking without the issuance of a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Traditionally, USCIS would utilize its better judgment by offering those applying for adjustment an opportunity to either correct any mistakes without keeping the filing fees by rejecting a filing or by issuing an RFE to afford the applicant a chance to submit missing evidence.
While this policy came about in 2018, those of us in the immigration legal community have been receiving reports of the National Benefits Center (NBC) summarily denying I-485 applications. These recent “Statutory Denials” may be a sign of further enforcement of the July 13, 2018, USCIS Policy Memorandum. Enforcement of the 2018 policy places a huge burden on many families who run the risk of losing out on all the immigration filing fees paid in a case due to minor clerical mistakes or what the adjudicating officer feels in his/her discretion is not sufficient evidence at the time of filing the case without giving further opportunity to cure the alleged defect or lack of evidence.
Even if a case survives through to the adjudication period and the applicant has no grounds of inadmissibility that would warrant a denial, USCIS Officers have become more aggressive in using the “discretionary immigration denial” to attempt to justify a denial even in these circumstances. Thus, to attempt to avoid the potential for a statutory or discretionary denial, we recommend the following guidelines are given special attention to when preparing a case for adjustment of status:
- Carefully review all form instructions before submitting a petition or application and check the USCIS website to make sure the correct edition of the form is being used.
- Before mailing a petition or application, be certain all forms are fully completed and signed. While required on some forms but not yet required on all forms, it is recommended to type or print “N/A” in all empty boxes unless otherwise instruction and to type or print “none” where a numeric response is zero or none unless otherwise directed.
- Double-check your mailing to ensure all required forms, initial evidence and any additional supporting evidence, as well as the correct filing fee(s) payment is included. If any required evidence is unavailable, including initial evidence and/or supporting documents (evidence of bona fide marriage, for example), a detailed explanation and any secondary evidence should be provided. Secondary evidence consists of evidence that can otherwise assist the officer in obtaining information necessary to make a decision on the case absent primary evidence. For example, if a birth certificate is not available, affidavits as well as church or school records could suffice. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.
- Include a Cover Letter and/or Exhibit List on top of the filing to clearly identify all items being submitted.
- Birth Certificates, Marriage Certificates, Divorce Decrees – ensure the items submitted match those identified in the U.S. Department of State’s Foreign Affairs Manual (FAM) or Reciprocity and Civil Documents Check the Reciprocity and Civil Documents list frequently, as there are often unannounced changes. If the primary document is not available, applicants should follow instructions in the reciprocity list and make every effort to obtain the primary document. Secondary evidence should only be submitted if the primary document is unavailable.
- Proof of Lawful Admission or Parole – include a copy of all relevant entry and admission documents, i.e., I-94, CBP admission stamp, visa stamp. If one or more of these items are not available, applicants should provide secondary evidence.
- Ensure that your application is filed by Experienced immigration counsel who can ensure eligibility and protect against a discretionary denial.
How an Experienced Immigration Attorney Can Help
The above are ways to help reduce the chances of a denial if you are filing for adjustment of status; however, the best advice would be to have an experienced immigration firm assist in the preparation and filing of your case. This will not only ensure your case is filed within the statutory requirements of the law, but further put you at ease that you have representation should immigration make an unjust decision. Here at Colombo & Hurd, PL we have an experienced team of immigration attorneys and paralegals to make sure that the best version of your case is filed with the appropriate authorities. Through the process we will work diligently on your behalf in order to increase the likelihood of a favorable outcome.
We offer services in a number of languages and have attorneys that speak Spanish, Portuguese and Italian. To learn more, contact us by calling our Orlando office at (407) 478-1111, our Tampa Office at (813) 444-1114 or our Miami office at (305) 455-0590.
