Marriage-Based Adjustment of Status Denied: What's Next?

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:

• renewing your application in immigration court proceedings, or
• submitting a new application.

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.

Can You Appeal the USCIS Denial, or Try Again?

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.

Renewing an Adjustment of Status Application in Immigration Court

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:

1. At the Master Calendar Hearing, tell the immigration judge that you want to seek adjustment of status as your relief from removal. (If you have additional grounds for relief, such as asylum, you can add these as well.)
2. The immigration judge will set a date by which you must give all paperwork to the immigration court and to the U.S. government attorney, and will also set a date for your individual or "merits" hearing. That is when you will present your case in person, in immigration court.
3. Give copies to the Immigration Court and the U.S. government attorney of your I-485 application and all supporting evidence, plus the receipts from USCIS (Forms I-797) showing that it received your application and that you paid the fees.
4. If you can come up with more documents to support your case for U.S. residence that you did not already present to USCIS, you can file this "supplemental" evidence with the Immigration Court. Mail copies of anything you file to the U.S. 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.
5. At your individual hearing, present your case with evidence. You will be cross examined by an attorney for the U.S. government. The immigration judge may ask you questions, too. The judge will consider and make a decision on your application. Unfortunately, because you are in removal proceedings, the judge is likely to look more closely at your case than the USCIS officer did. The judge may approve the application or deny it.

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.

Starting Over With a New Application for U.S. Permanent Residence

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.

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 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.

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 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.

Did USCIS believe you were inadmissible to the United States?

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.

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 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.

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 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.

Getting Legal Help

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.