The United States Citizenship and Immigration Service denied your green card petition. Now what? This is the unfortunate reality an increasing number of immigrants face each day. After all the time and money spent, all the hope and handwringing, your status as a lawful resident of the United States is suddenly in peril. It’s easy for us to say, but try not to panic. We can help rescue your green card after USCIS denial.
In This Article:
- What to Do First
- Options if Your Green Card is Denied
- File a New Application
- Take the USCIS to Court
- Reopen, Reconsider, or Appeal
- Why USCIS Could Deny a Green Card Petition
Get Help if Your Green Card was Denied
If your green card application has been denied, or you worry that it will be, then you know what a terrible setback it is. Take action. Time might not be on your side, but our compassionate immigration attorneys will be. Our Immigration Team has the knowledge and experience to get you back on the path toward lawful permanent resident status. Call 303-688-0944 to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.
What to Do First
Let’s say you just opened the letter from the USCIS about your green card application and read the bad news. DENIED. We understand you may be discouraged right now. The good news is, in many green card denial cases, the denied applicant has a number of options before all hope is lost, so to speak.
In order to delve into your potential options, it’s important to find out if you can appeal the denial. You’ll find this information in the letter you received from USCIS. It will help you narrow down what you can do next.
Read the denial letter carefully for:
- whether you can appeal the denial, and
- how and when to file your appeal.
What if My Letter Says I Cannot File an Appeal?
Do not be dismayed if the document says there is no appeal. In most cases, especially involving marriage-based I-751 petitions, there won’t be any process of appeal.
In circumstances in which an appeal is allowed, doing so may not be your best option anyway. We’ll get to why that is a little later in this article.
Still, if your green card petition has been denied, there is no appeal, and you’re wondering what your options are, it’s always best to contact an immigration attorney before deciding what to do next.
Time is of the Essence if Your Green Card is Denied
The important thing to understand is you have a limited amount of time to respond to the USCIS decision. Once that door closes, your case goes to immigration court. While that’s not necessarily the worst that could happen, it can still be scary, and it considerably narrows your choices.
So, what are your options moving forward, and what should you do next? Let’s take a look.
Options if Your Green Card is Denied
Options if Your Green Card is Denied infographic.
Depending on your particular case, and why your green card got denied, there could be just one way forward, or there could be more. So please understand that the options listed in this article may or may not be available to you. That’s why we strongly encourage you to talk with an immigration attorney who can provide guidance on the best path for you and how to avoid bureaucratic snags.
With that said, let’s take a look at how you may be able to fight your green card denial:
- File a new application.
- Take your case to court.
- Request to have your application reopened. (If you have new information that can help your petition.)
- Ask for your application to be reconsidered. (If you think the USCIS misapplied a policy and erred in judgment.)
- Appeal the denial to a different authority, if you are allowed an appeal.
Let’s look at the benefits of each option.
File a New Application
If you know why your green card petition got denied, and it’s something easily corrected, it may be wiser to simply re-submit the paperwork as a new applicant.
Here are some scenarios in which a denied applicant might be approved the second time around:
- there were flaws in the original filing
- the original paperwork had some inadvertent inconsistencies
- the applicant was ill-prepared for the interview
In these scenarios, correcting a few mistakes or being better prepared may be all the applicant needs to move the mark to an approval.
Reapplying can often be the smoothest process, especially for family-based (I-751) petitions.
Another benefit of starting over is you may be able to get work authorization and keep your legal status. You’ll want to talk to an immigration attorney about whether this is an option for you based on your case.
Is There a Fee for a Second Green Card Application?
Yes. The non-refundable fee must be paid again. In 2022, the filing fee for an I-751 is $595, and the filing fee for an I-485 is $1225. Re-filing, however, might be easier than trying to get the USCIS to admit it made a mistake on your first application.
Take the USCIS to Court
In the past, challenging the USCIS in federal court was the last resort in a green card denial case, but that’s not the case anymore.
In fact, it can be one of the most effective means of overturning a green card denial, especially if you have a reasonably strong case.
Under the Administrative Procedure Act (APA), you can challenge the USCIS for a decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 USC §551 et seq. (1946)
Compared to other types of litigation, challenging the USCIS can be less expensive and can move more quickly than you may imagine due to limited witnesses and trial preparation.
The Strategy Behind Taking the USCIS to Court
Like most people, the United States Citizenship and Immigration Service does not enjoy being subjected to federal litigation. But, if you believe you have a strong enough case to bet that the USCIS does not want to be scrutinized, there’s a chance you can win that bet.
Here’s why: Once you file the APA complaint in federal court, the Government (USCIS) has 60 days to answer. This means the USCIS must take your file off the shelf, examine it, have meetings over it, and decide if they want to go to court over it. If you have a reasonably strong case, they’ll likely concede to your attorney and issue a swift approval.
If the USCIS decides to challenge your complaint, the judge will set a timeline to hear the case. Generally, these cases are decided within six or seven months.
Reopen, Reconsider, or Appeal
Not everyone wants to go all the way to the back of the line and re-file again. In fact, not everyone should. The most common and potentially most effective options for rescuing your green card petition remain a motion to appeal, reopen, or reconsider the petition that’s been declined.
Respond to Your Green Card Denial
You have 30 days from the date on your green card denial/notice to appear letter to lodge an official response with the USCIS.
The form to use is called an I-290B. This is the document filed in almost any situation where a visa or green card has been denied.
Where your I-290B is submitted depends on the type of motion you’re filing. The USCIS provides a list of addresses here.
Submitting the form to the wrong address will likely result in further delay in the process. An immigration attorney can help you submit the paperwork to ensure it’s accurate and sent to the appropriate department.
What Is a Form I-290B?
Form I-290B is a document that asks the USCIS to take another look at your green card denial. It is a motion to either appeal, reopen or reconsider your case.
The fee to file an I-290B is $675, and it’s nonrefundable, so it’s important to make sure everything on it is complete and accurate. Let’s take a look at the different motions:
Motion to Appeal
A motion to appeal asks a different authority to review and possibly change the USCIS’ decision.
Depending on the nature of your petition, the Board of Immigration Appeals or the Administrative Appeals Office will receive your appeal. It can also take from six months to two years to get a decision. During this time, you will not have valid legal status or the right to file for a work permit while your case is pending.
Motion to Reopen
Filing this motion asks the USCIS officer who denied your green card to review their decision based on new facts.
For example, some marriage-based green cards are denied because the USCIS officer isn’t convinced the union is based on love. Filing a motion to reopen your petition allows you a chance to present more compelling evidence that your marriage is indeed legitimate. Your immigration attorney can help you identify what kind of documentation will help prove your marriage is based on love and give you the best shot at having your denial reversed.
Motion to Reconsider
A motion to reconsider is a request to review whether the decision to deny your green card was based on an incorrect application of law or policy.
There is no elegant way to describe the vast network of immigration laws, forms, procedures, and requirements or all the complications that can arise when USCIS protocol meets specific human situations. Oversight and mistakes happen.
If you believe your petition was denied based on an error, an immigration attorney can identify the mistake, articulate the error, and explain why your green card should be approved.
Why USCIS Could Deny a Green Card Petition
The USCIS has a responsibility to accurately apply U.S. law when it reviews immigration petitions, like your application for a green card. The process to get a green card can be tedious, and it is inevitable that honest, law-abiding immigrants’ petitions will be denied. It’s important to understand why green cards are denied as you move forward with your appeal, reapplication, or lawsuit.
- Past Criminal Conduct and/or Fraud: If you’ve been convicted of drug trafficking, violent crime, fraud, commercialization of gambling, prostitution or sex trafficking, then you’re inadmissible for residence in the U.S.
- Prior Deportation or Unlawful Presence: If you’re applying for a green card and the USCIS doesn’t know how you got to this country in the first place, that’s a problem.
- National Security Concern: If the U.S. government has reason to suspect or has knowledge that you’ve engaged in genocide, terrorist activities, or supported extremist or totalitarian regimes or organizations, that’s a red flag.
- Dishonesty: If the USCIS believes you’ve lied or deliberately failed to disclose relevant information in any of your immigration paperwork, they will deny your request.
- Lacking Financial Means of Support: If you plan to live in the U.S., the CIS needs ample evidence that you can either provide for yourself or that you have family here who can support you.
- Poor Health: A thorough medical exam by a government-approved physician is mandatory for admission as a permanent resident. If the petitioner is found to have a communicable disease, lacks necessary vaccination for the U.S., is deemed mentally ill, or a drug addict, it could doom their chances of an approved green card.
- Missing Deadlines and Appointments: Sometimes this happens for innocent reasons, such as getting bad or incomplete information from the USCIS officer handling your file – and a good immigration attorney can spot this. But this is a serious matter. The CIS has little tolerance for petitioners who seem not to take the process seriously.
- Incomplete or Sloppy Paperwork: Lines left blank, foreign-language forms from the home country that haven’t been translated to English, missing signatures, incorrect photos, and petitions arriving without the full filing fee attached will almost always lead to a denial.
Some denials can be rectified by the combination of new or better information and an experienced immigration attorney.
Get Your Green Card Petition Back on Track
If your first attempt at getting a green card has been denied, it can be an equally long, uphill process to set it right. Don’t go it alone. Robinson & Henry’s experienced immigration attorneys will work with the immigration courts to get your application back on track so you can remain in the U.S. Call 303-688-0944 to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.