Many binational couples who hope to immigrate the foreign-born spouse to the U.S. based on marriage to a U.S. citizen are disappointed to find the process is neither easy nor automatic. If U.S. Citizenship and Immigration Services (USCIS) approves the initial petition filed by the U.S. fiancé or spouse (on Form I-129F or I-130) to help the foreign national immigrate, but then denies their application for a green card via adjustment of status (on Form I-485), the next steps can be complicated.
Nevertheless, when the immigrant applicant is in the United States, some follow-up steps are possible, including:
We'll discuss these options below, then focus on making sure that you analyze what went wrong with the first application and make sure to correct it on the next try.
Adjustment of status is a discretionary benefit, which means that USCIS is not required to grant it to anyone. Basically, the agency can make decisions case by case, and no person has a legal "right" to adjust status. What's more, because this benefit is discretionary, no applicant has any right to appeal a denial to a higher authority or court.
However, you might have another chance to make your case for adjustment of status. How and when you can do so will depend on your specific situation, as follows.
If you do not currently have any other legal status in the United States, such as a temporary (nonimmigrant) employment visa or an F-1 student visa, you should receive what's called a "Notice to Appear" (NTA) after your adjustment of status application is denied. The NTA is a summons, ordering you to present yourself in Immigration Court for removal (deportation) proceedings.
USCIS does not always issue these NTA notices promptly; you might wait weeks or even months to receive it. The NTA will be sent to the address that USCIS has on file for you. Be sure to update your address with USCIS as well as the Immigration Court system (EOIR) if you move, or you might miss your date in Immigration Court and not only lose this second chance to apply for a green card but have an in absentia order of removal placed in your immigration file, which is extremely hard to undo.
If USCIS did not revoke or deny your underlying family petition (the I-129F for a fiancé or I-130 for a husband or wife) 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 without needing to file a new petition or pay application fees again.
It's best to hire an attorney to help with this, because other parts of the court procedures can be difficult. Here are the basic steps:
By the way, you can also argue for other forms of immigration relief in immigration court, such as if you believe you qualify for asylum.
Not every applicant who is denied adjustment of status will have a chance to renew their 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, with a request for lawful permanent residence through adjustment of status. If USCIS did not revoke or deny your underlying family petition (I-129F or I-130) then you just need to file a 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.
Whether you will be successful at obtaining a green card either by renewing your claim in immigration court or submitting a new one depends on why the application was denied in the first place. Some reasons for denial will be easy to overcome, others could be insurmountable. Here are some common issues to consider.
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 denies an application if it did not think there was enough evidence that the marriage was bona fide.
If your marriage is nontraditional in some way (large age difference, separate living quarters, hasty marriage after a short courtship), these are considered red flags, and USCIS will expect a large amount of evidence showing that you have a bona fide marriage relationship.
It's possible that USCIS believed you were inadmissible for some reason other than lack of evidence. For example, the denial might have been based on a past criminal conviction or a prior order of removal. If USCIS made a legal or factual error, you might, 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 might 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.
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 normally be in lawful status yourself to adjust status, and you might need to wait some time for a visa to become 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 within the United States, then you might be able to succeed when you renew or refile by showing your eligibility.
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 What Is Marriage Fraud Under U.S. Immigration Law? and 8 U.S.C. § 1325.
If you simply did not provide enough evidence to prove that your marriage is real, 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.
It's a good idea to hire an immigration lawyer when facing denial of an application. That way you can better understand what might have gone wrong with your first application and take constructive steps to salvage your chance for U.S. lawful permanent residency.
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