Whether you applied from within the U.S. or through a U.S. Embassy or Consulate abroad, the permanent residency application process was likely extensive, expensive, and time-consuming. Receiving a Notice of Intent to Deny after investing your resources into this process can be devastating. The stakes may be particularly high if family members are counting on you or you were applying to protect yourself from deportation.
Fortunately, USCIS generally allows applicants to provide supplemental information or otherwise overturn the denial. You will need qualified support, however, to determine which method to take. Retaining the counsel and representation of an experienced attorney is your first step if your green card application was denied. The following is an overview of the options your attorney may recommend.
Submitting a New Petition
If your initial petition (e.g. Form I-129, I-130, or I-140) is denied, appealing the decision will likely cost more time and money than simply reapplying. Because the initial petition is merely the first step in the permanent residency process, starting over will not make a significant difference in your overall timeline.
Appealing Your Green Card Application
Unfortunately, immigrant visa denials (i.e. through Consular Processing abroad) cannot be appealed.
However, if you applied for a green card from within the U.S. (i.e. adjustment of status), your notice should tell you whether you can appeal the decision. Appealable denials are uncommon, though, and your window to file will be small. You will also need to pay a fee.
When you appeal, you are essentially asking USCIS’s Administrative Appeals Office to examine your case and determine whether the adjudicating officer made a mistake in denying your green card. Qualified legal support is critical if you need to appeal a green card denial.
Filing a Motion to Reconsider or Reopen
If your green card application denial is not appealable, you may be able to overturn it by filing a motion to reconsider or reopen. Both of these options are different from an appeal because they don’t go through the Administrative Appeals Office. Instead, the motion goes to the officer who originally denied your application.
You would file a motion to reconsider if you believed the officer denied your case for the wrong reason (e.g. they misinterpreted your situation, misapplied certain laws, etc.). A motion to reopen, on the other hand, is when your situation has significantly changed, or new evidence has presented itself.
Reversing an Immigrant Visa Denial
While you cannot appeal a finalized immigrant visa denial, you will be given a reason for the denial as well as a one-year window to provide more evidence of your eligibility. In most cases, the reason is that the application was incomplete or required additional information.
If you cannot convince the officer to reverse the denial within a year, the case will be closed, and you will need to start over.
In some cases, the consulate will ask USCIS to revoke your initial petition. You will need to supply USCIS with evidence and argumentation that 1) your petition should not be revoked, and 2) USCIS should ask the consulate to schedule another visa interview. Be prepared to wait several years, however, as interactions of this type between USCIS and a U.S. consulate are not prioritized or expedited.
When an Application Becomes a Removal Proceeding
The consequences of a green card denial will be more severe if, at the time of the denial, you do not have legal status. This could trigger a removal proceeding. You will, however, have the opportunity to defend yourself in court before an immigration judge.
Appearing for a court date is critical. If you fail to appear, the court will likely decree an in absentia order of removal, in which ICE can deport you at a moment’s notice. You will then need to wait 10 years before returning to the U.S.
If you want to become a permanent resident but you are currently undocumented, you may consider requesting asylum or applying for a waiver of unlawful presence first.
Retain Skilled Guidance from Our Qualified Professionals
Navigating the immigration process can be all but impossible without an experienced attorney by your side. Our team at Sintsirmas & Mueller Co. L.P.A. urges you to get in touch with us, especially if you are facing an application denial or removal proceeding. We know what it takes to overcome legal barriers and successfully obtain a green card.