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Strategies discussed include Motions to Reopen, Reconsider, BIA and AAO Appeals as well as Federal Court Challenges.

Did you just receive an immigration denial or are you concerned about the possibility of receiving one? You are not alone. Based on data released from USCIS in 2020, the denial rates for family-based immigration applications are up 41% since 2016. The increase in denials of employment-based immigration applications is almost as bad overall and worse for some types of applications.

Over the last few years, I’ve received hundreds of calls, emails and texts (more than ever) from denied immigration applicants looking for a way to obtain approval, keep legal status or receive their green card. The way forward is not always clear. The U.S. government has created a byzantine system with multiple options fraught with pitfalls and dead ends.

At Colombo & Hurd, we have been successful in navigating a course to approval for many clients who came to us after an initial denial. The best path forward depends on a variety of factors and is frequently not listed as an option on a USCIS denial letter. Read on to find out some of the creative strategies for dealing with an immigration denial and getting a successful result.

Reasons for an Immigration Denial

In order to determine the best way to combat a denial you must first understand the reason for the denial. Generally, denials break down into three categories. The first type is a technical denial for failing to provide documentation required in the application. Previously, USCIS would send a Request for Evidence to obtain documents that were not sent in with the application. However, in 2018 the Trump administration has ordered that USCIS officers may simply deny a case rather than requesting documents. Many Officers have been doing just that.

The second type of denial is a finding based on the Officer’s discretion that the applicant should be denied. This type of denial could arise if USCIS didn’t believe you had a bona fide marriage, that you didn’t qualify for the position your employer submitted or for other reasons they believed you should not receive an approval in their discretion. This is the most common reason for a denial and can be the most difficult to combat, but we have found some unique opportunities that force USCIS to take a long hard look at the case and possibly have to explain their decision to a judge, which they frequently don’t want to do. More on that later.

The final type of denial is based on finding, as a matter of law, that the applicant is not entitled to the benefit sought. Under this denial the Officer is saying her hands are tied because the federal statute or regulation does not allow for her to approve the application even if you are otherwise deserving. Now that we have gone through the different types of reasons for a denial, we can look at the options that exist to fight back.

Strategies to Combat the Immigration Denial and Win Approval

Option #1 Motion to Reopen or Reconsider

A Motion to Reopen or Reconsider is the most common option used to fight an immigration denial. Even though it is the option used the most, we find it is usually a poor strategy to select. When filing a Motion to Reopen or Reconsider, you pay a fee of $675 to USCIS and you must convince the same USCIS office that either they overlooked the law or facts present in your case or that you have new information that should make them change their mind. However, the Field Adjudicator’s Manual sets out that the standard to gain approval through this option is very difficult to satisfy.

USCIS lays out that a Motion to Reopen or Reconsider should be approved only when “there is a clear change or distinction in facts. Even in these circumstances, a supervisor must explicitly concur with the different conclusion.” USCIS has set it up so that only in the most egregious of scenarios will this Motion be approved.

But that is not the only problem with a Motion to Reopen or Reconsider. The filing of such a Motion does not provide the applicant legal status in the US (unless you win) and it does not allow for an extension or renewal of a work permit. There is also no set time frame for USCIS to approve the Motion. I’ve seen Motions approved in just a few weeks, but that is a rarity. Usually it will take six months or longer and can stretch well beyond a year.

That is not to say the Motion to Reopen or Reconsider should never be utilized. Earlier this year I received approval for a client that USCIS wrongly concluded had an entry that made him ineligible for adjustment. I demonstrated to USCIS how they were mistaken, and the applicant’s employment-based application was successfully reopened for approval. However, the circumstances where we are able to use this option are few and far between.  Instead, we are more likely to use the next option.

 Option #2 Service Motion to Reopen

What option can you consider when USCIS makes a clear error that is indisputably their fault and denies the case as a result? A Service Motion to Reopen is a reopening of the case by USCIS (the “Service”) at their own request in order to rectify a clear legal error. There is no fee required to file the Request. Over the years I’ve had USCIS grant requests for Service Motion to Reopens in a variety of cases. However, since 2017 it has become far more difficult to get USCIS to admit they made a mistake.

The manner in which a Service Motion to Reopen can be filed varies. You can certainly mail in a formal Request for Service Motion to Reopen in writing, but frequently those may well never make it to an Officer with the power to reopen your case. And since no one is assigned the case there is no responsibility for someone to make a decision at USCIS. Instead, I find that the best way to get a Service Motion to Reopen granted is through informal channels. This means either scheduling an appointment through the USCIS system (if you can get one) or speaking to a supervisor at the local USCIS office while you are there on another matter (for an attorney).

Earlier this year USCIS reopened and approved a green card application in just this manner. My client’s I-485 was denied because USCIS indicated her Temporary Protected Status (TPS) had expired prior to the date her application was filed. USCIS reasoned that because her husband was a lawful permanent resident the fact she was out of status at the time she filed her I-485 made her ineligible to obtain her green card. I was able to speak with a supervisor at the local office and explain that the TPS for her country, Nepal, had been auto-extended by USCIS due to an outstanding federal suit and, accordingly, she remained in status. Although the supervisor did not believe this to be the case at first, he did review the documentation I provided him and subsequently called me and agreed to reopen the case due to the clear legal error. My client received her green card in March, 2020.

In your case, a Request for Service Motion to Reopen may be considered when there is clear legal error and you have a USCIS office that is willing to communicate with counsel. I’ve dealt with several USCIS offices who were unwilling to even consider a Service Motion despite clear legal error. It’s important to keep in mind that the filing of a Request for a Service Motion to Reopen does not put you back into legal status or allow you to apply for an employment authorization document. Also, a decision on the Request is purely discretionary and there is no appeal if USCIS decides not to Reopen under these grounds.

Option #3 Appeal to the Board of Immigration Appeals or the Administrative Office for Appeals

Denials of I-130 (Family Based) Petitions can be appealed to the Board of Immigration Appeals (BIA). Likewise, denials of I-140 (Employment Based) Petitions can be appealed to the Administrative Appeals Office (AAO). However, I do not typically favor either of these options in 2020. Over the last several years, both the BIA and AAO have become exceptionally averse to ruling in favor of immigrants.

While historically neither body was particularly pro-immigrant, I have received positive decisions from both the Board and the AAO over the years. Of late though, the make-up of both have shifted to be even more hostile to immigrants. Filing an appeal to the AAO for a denied EB-1, EB-2, EB-3 or I-129 should be carefully considered in light of the significant uphill battle you will face. Then there is the time involved. Getting a decision from the AAO is going to be at least eight months and likely a year or longer. With the BIA – don’t hold your breath.

On average it takes USCIS six months to even send the appeal to the Board, and then you are waiting a year, possibly two, for a decision after that. Of course, during all this time you do not maintain valid legal status or the right to file for a work permit as a result of the appeal. You would have to have status or an employment authorization document through another means. Thus, the option to appeal to the BIA or AAO is generally not a good option.

Option #4 Refile

For family-based applications, refiling is frequently the smoothest process to obtain approval. I’ve seen a number of denials for cases that were not formulated properly or clients who were not properly prepared for an interview before USCIS. I’ve also seen cases denied for a deficiency, an inconsistency or even a misapprehension by the Officer. If you face one of these types of situations, refiling is an option to strongly consider.

When an I-130 is denied for one of these reasons based on an existing familial relationship that continues, it is generally far easier to refile the Petition rather than go through the arduous task of trying to get USCIS to admit they made a mistake denying the last one (even if they did). Of course, every situation is different, but the important thing here is to obtain an approval in the most expeditious manner possible. Many times that means refiling everything – though making sure you are more prepared and thorough with the new application.

Likewise, for employment-based applications, refiling is also frequently the best path forward, especially when I review applications that I don’t think were particularly strong due to lack of quality representation the first time. I’ve seen EB-1 and National Interest Waiver applications in particular that were woeful and rightly denied where the applicant clearly qualified for the benefit but the documentation was so shoddy there was no way that USCIS was going to approve.

Whether refiling would be the best path forward for you really depends on the specifics of what happened in your case, but it is definitely an option to consider.  Another benefit of refiling is many times you can obtain work authorization and potentially maintain legal status through the refile (depending on the specifics of the case).

Option #5 Challenging the Denial in Federal Court

USCIS does not want to be challenged in federal court. Over the years so many clients I have talked to have been very concerned about going before a federal judge because it can feel like a scary proposition having a federal judge review all the actions you have taken. But it is, in fact, USCIS that really does not want that level of scrutiny.

Out of the dozens of federal immigration cases I have filed since January 2017, only once did USCIS actually file a response to a federal complaint. Against a strong case, they are loathe to fight it out in front of a federal judge. In all but one case, USCIS conceded to the items we requested in our complaints, and we were able to successfully dismiss the cases before they had to explain to the Court the reasoning for their action.

If you have a strong case against a denial in either the family or employment context and one of the other options is not viable for one reason or another, a federal court action may be a good option. Under the Administrative Procedure Act, USCIS can be challenged for a decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Moreover, even when USCIS makes a determination of substantive law that goes against you, they can be challenged on that point through an action for declaratory judgment. This type of federal complaint allows a federal judge to determine whether a USCIS decision complies with the federal statute or regulation. The decision of whether to proceed with a federal lawsuit should be carefully considered, but it is an arrow in the quiver that applicants should not be afraid to use under the right circumstances.

Green Card or Immigration Denial Questions – We Can Help

At Colombo & Hurd, we work exclusively in the field of immigration law. Our firm was established almost fifteen years ago and during that time we have helped thousands obtain green cards through employment and family-based applications and other types of visas. We have also successfully overcome hundreds of denials to achieve positive results for our clients. Contact us today at (407) 478-1111 (Orlando), (813) 444-1114 (Tampa) or (305) 455-0590 (Miami) to schedule a confidential initial consultation.

Rusten Hurd

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