How to Effectively Challenge USCIS Decisions and Turn the Tables After an Unexpected Denial

Navigating the maze of U.S. immigration procedures can be daunting, and an unexpected denial from the United States Citizenship and Immigration Services (USCIS) can be a major setback. However, an initial denial does not necessarily mean the end of your journey. Today, let's delve deeper into how you can effectively challenge USCIS authority with real legal provisions and possibly reverse their decision.

1. Understanding the Types of Responses from USCIS

When you submit an immigration application, responses can vary:

• Approval Notice: Direct approval of your application.
• Request for Evidence (RFE): If there are minor errors or incomplete documents, USCIS will request additional documentation.
• Notice of Intent to Deny (NOID): This indicates that USCIS is leaning towards denying the application but lacks sufficient evidence to approve or outright deny it. This is your cue to provide additional supporting materials.
• Denial Notice: Indicates that your application has been rejected.

2. Options After a Denial: Appeals vs. Motions

A denial is not the end. Applicants generally have choices such as:

• Appeals: This involves requesting a review of your case by a different authority than the one that issued the unfavorable decision. AAO and BIA are the typical bodies handling such reviews. Appeals are governed by Title 8, Code of Federal Regulations, Part 103.3.
• Motions: These include:
  • Motion to Reopen: Based on new facts not previously submitted, governed by Title 8, Code of Federal Regulations, Part 103.5. This allows for presenting new evidence pertinent to the case.
  • Motion to Reconsider: If you believe the decision was based on incorrect application of law or policy, you can request a reconsideration citing the correct statutes or case laws, as outlined in Title 8, Code of Federal Regulations, Part 103.5.

3. Navigating the Process

Most applicants are not expected to understand every detail of these procedures. This is where professional immigration lawyers come into play. However, knowing that there are avenues to challenge a decision is crucial.

Step 1. Review the Denial Notice

Firstly, carefully review the Denial Notice or adverse decision from USCIS. This document will provide specific reasons for the denial and inform you of your rights to file an appeal or motion. It is crucial to understand the grounds for denial as this will guide your next steps.

Step 2. Decide Between Appeal and Motion

Based on the information in the Denial Notice, you need to decide whether to file an appeal or a motion:

• Appeal: An appeal is appropriate if you believe that the decision was wrongly made due to an incorrect application of law or USCIS policy. Appeals are submitted to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), depending on the type of case.
• Motion: A Motion to Reopen or Reconsider is filed directly with the office that issued the initial decision. A Motion to Reopen is based on new facts or evidence that was not previously available, while a Motion to Reconsider challenges the decision based on alleged errors in the application of the law.

Step 3. Prepare Your Documentation

Gather and prepare the necessary documentation to support your claim:

• For an Appeal, assemble all relevant legal documents, previous USCIS correspondence, and any new evidence that supports your case. You must clearly demonstrate why the original decision should be overturned based on legal grounds.
• For a Motion to Reopen, compile new facts and evidence that was not initially submitted with the application. This might include new affidavits, evidence of changed circumstances, or corrected documentation.
• For a Motion to Reconsider, prepare a detailed legal brief citing specific legal errors in the original decision. This should include references to relevant statutes, regulations, and case law that support your position.

Step 4. Submit Your Appeal or Motion

File your appeal or motion with the appropriate USCIS office:

• Filing Deadlines: Ensure that you meet the strict deadlines. Appeals must generally be filed within 30 days of the decision, while motions must be filed within 30 days or sometimes 33 days if the decision was mailed.
• Filing Fees: Pay the required filing fees unless a fee waiver is applicable. Make sure to check current fees on the USCIS website as they can change.

Step 5.  Follow Up and Attend Hearings

After filing, it’s important to follow up with USCIS to check the status of your case. If there are any hearings scheduled, attending them is crucial. At the hearing, you or your attorney will have the opportunity to present your case, argue your points, and answer any questions from the judge or reviewing authority.

Step 6. Receive the Decision

The decision timeframe can vary greatly depending on the complexity of the case and the backlog at the reviewing office. Decisions can take anywhere from a few months to over a year. Upon receiving the decision, review it thoroughly to understand the outcome and any further rights or steps you may have.

4. What You Should Do

If you face a USCIS error, analyze the reasons behind your application's rejection. Consulting with an experienced immigration attorney is advisable. They can help you strategically file an appeal or motion within the allowed period.

USCIS processes are intricate and prone to human error due to the manual nature of their operations. While it's essential to prepare for strict scrutiny, don't overestimate their efficiency. If you encounter an error, you should not have to pay for their mistakes. Instead, take strategic action to address any issues within the timeframe allowed.

Remember, a USCIS denial is not necessarily the final word. With the right approach, accurate legal knowledge, and professional help, there are ways to challenge their decisions and potentially turn a denial into an approval. Stay informed, prepared, and proactive in your immigration journey.