If USCIS had approved your fiancé or spouse petition (Form I-129F or I-130), but then denies your application foradjustment of status (Form I-485), the next steps can be complicated. It is a good idea to hire a lawyer in such circumstances. That way you can better understand what might have gone wrong with your first application, and take the right steps to salvage your chance for Lawful Permanent Residency (a green card).
Can You Appeal the Denial, or Try Again?
Adjustment of status is a discretionary benefit, which means USCIS is not required to grant anyone adjustment of status; they can make decisions case by case. Put another way, no one has a "right" to adjust status. Because this benefit is discretionary, you have no right to appeal a denial.
However, you may have another chance to make your case for adjustment of status. How and when you can do so will depend on your specific situation. Here are some common scenarios:
Renewing the Application in Immigration Court
If you do not currently have any other legal status in the United States, such as a temporary employment visa or student visa, then you should receive a Notice to Appear (NTA) after your application is denied. This is a summons to appear in Immigration Court for removal proceedings.
USCIS does not always issue these notices promptly; you may wait weeks or even months for the NTA. The NTA will be sent to the address which USCIS has on file for you. Be sure to update your address if you move, or you may miss your date in Immigration Court.
If USCIS did not revoke or deny your family petition (either the I-129F or I-130), then, in Immigration Court, you will have an opportunity to "renew" your application for adjustment of status. This means that you can give the same I-485 to the immigration Judge and present your case for adjustment of status without needing to file a new petition or pay fees again. (Still, it is best to hire an attorney to help with this, because other parts of the court procedures can be difficult.) Here are the basic steps:
- At your Master Calendar Hearing, tell the Immigration Judge that you want to seek adjustment of status as your relief from removal. (If you have any additional grounds for relief, such as asylum, you can add these to your requested relief as well.)
- The Immigration Judge will set a date by which you must give all paperwork to the court and to the government attorney. The Immigration Judge will also set a date for your Individual or “Merits” Hearing, which is when you will present your case.
- Give copies to the Immigration Court and the government attorney of your I-485 and all supporting evidence, plus the receipts from USCIS (I-797 s) showing that your application was received and that fees were paid.
- If you can come up with more evidence, which you did not present with your application to USCIS, you can also file this "supplemental" evidence with the Immigration Court. Be sure to mail copies of anything you file to the government attorney as well. See "Documents to Bring to Your Marriage-Based Adjustment of Status Interview" for ideas on how to prove a bona fide marriage, in particular. You can bring witnesses who support your case also. It is best to file a list of your witnesses, and what topics they will testify about with the Immigration Court before your Individual hearing.
- At your Individual Hearing, present your case with evidence. You will be cross-examined by an attorney for the U.S. government. The judge may ask you questions, as well. The Immigration Judge will consider and make a decision on your application. Unfortunately, because you are in removal proceedings, the judge may look even more closely at your case than the USCIS officer did. The judge may approve the application or deny it.
Starting Over with a New Application for Permanent Residence
Not every person will have a chance to renew an application in Immigration Court. If you are in some other valid status such as on a nonimmigrant work visa, student visa, temporary protected status (TPS), DACA, or are not deportable for some other clear reason, USCIS will not issue an NTA.
However, you are free to try again, from the beginning, for lawful permanent residence through adjustment of status. If USCIS did not revoke or deny your family petition (I-129F or I-130) then you just need to file new application to adjust status (I-485) with the petition receipt and all other supporting evidence. You will need to pay all fees over again as well.
Even if you are deportable, you may file a new application with USCIS if it has not issued an NTA.
What Are the Chances of Getting a Green Card on a Second Try?
Whether you will be successful at obtaining a green card either by renewing your claim in immigration court or submitting a new one really depends on why the application was denied in the first place. Some reasons for denial will be easy to overcome, others may be insurmountable. Here are some common issues to consider regarding why your adjustment of status may have been denied:
Did you present incomplete forms or evidence?
If you are truly eligible to adjust status, but just did not prepare your application well the first time, you could succeed when you renew or refile by including more information and evidence. Most often, in cases based on marriage, USCIS may deny an application if it did not think there was enough evidence that the marriage was bona fide.
If your marriage is non-traditional in some way (large age difference, separate living quarters, hasty marriage after a short courtship), USCIS will expect more evidence showing that you have a bona fide marriage relationship.
Did USCIS believe you were inadmissible?
It is possible that USCIS believed you were inadmissible for some reason other than lack of evidence. For example, the denial might be based on a past criminal conviction or a prior order of removal. If USCIS made a legal or factual error, you may, when you refile or renew, be able to present evidence or legal arguments to show that you are not, in fact, inadmissible. However, if USCIS was correct about the facts and the law, then you can expect a denial if you renew or refile without first taking other steps to remedy the basis for your apparent inadmissibility.
In some cases, you may be able to request a waiver of inadmissibility. The rules for waivers are complicated, however. Speak with an attorney to find out whether you qualify for a waiver.
Did USCIS believe you used the wrong application procedure?
Not everyone is eligible to adjust status in the United States rather than applying though the “normal” channel, known as consular processing, in which the interview takes place in another country. For example, if your spouse is not a U.S. citizen, but a Lawful Permanent Resident, you must be in lawful status yourself to adjust status in the United States, and you may need to wait some time for a visa to be available. Also, noncitizens who entered the U.S. on certain types of visas are not eligible to adjust status.
If USCIS made a legal or factual error, and you actually are eligible to use the adjustment of status procedure to apply for your green card, then you may be able to succeed when you renew or refile by showing your eligibility. However, if USCIS was correct about the facts and the law, then you can expect a denial if you renew or refile.
Did USCIS believe your marriage was not bona fide?
The U.S. immigration authorities believe marriage fraud to be a major problem in immigration applications. It’s up to you, the applicant, to prove that you and your spouse are attempting to establish a life together – not just entering into a convenient arrangement to get the noncitizen a green card. For more information, read Nolo's article "What Is Marriage Fraud Under U.S. Immigration Law?"
If you simply did not provide enough evidence to prove that your marriage is real, you can think of your immigration court hearing or chance to refile as an opportunity to overcome that issue. If, however, USCIS actually found evidence that you were committing marriage fraud – for example, USCIS separated the two of you for a so-called “Stokes interview” and one spouse admitted to fraud – your chances of success are much lower, and you might also face criminal prosecution. Absolutely consult an attorney in this situation.