What to Do If an Application Is denied

First, a word of reassurance: Neither USCIS nor the consulates like to deny visas to eligible applicants. unless you are clearly ineligible, they will usually give you many chances to supplement your application and make it worthy of approval. Maybe this is the good side of a slow-moving bureaucracy—every decision takes time, even a negative one. (But don’t use this as an excuse to be sloppy in putting your application together the first time.)

If your visa or green card has been denied, and you didn’t use a lawyer, it’s time to hire one. This advice is par­ticularly important if the denial was due to something more serious than a bureaucratic mistake or a lack of documentation on your part. You’ll definitely need a lawyer for the complicated procedures mentioned below, including removal proceedings and motions to reopen or reconsider. See Chapter 6 on finding a lawyer.

1. denial of Initial visa Petition

If the USCIS service center denies your initial visa petition (I-129F, I-130, or I-140), the best thing for your petitioner to do is to start over and file a new one. This is true even if a lawyer is helping you. There is an appeal process, but hardly anyone ever uses it. You’ll prob­ably spend less time starting over, and the fee is about the same. Besides, no government agency likes to admit it was wrong, so there is a tactical advantage to getting a fresh start.

2. denial of visa or Green card

If uSCIS or the consulate denies an application farther along in the process, your response will depend on where you are—in the U. S. or in another country.

a. denial of Green card after adjustment of Status application in the U. S.

If you are applying for adjustment of status in the United States, there is tech­nically no appeal after a denial. If, as is likely, you have no other legal right to be in the United States when the application is denied (such as a pending political asylum application), you will be placed in removal proceedings in Immi­gration Court. There, you will have the opportunity to renew your green card application before an immigration judge. In rare circumstances, you might need to file a motion to have your case reopened

image081or reconsidered; or you may need to file a separate suit in federal court.

Never ignore a notice to appear in Immigration Court. Attorneys regularly receive questions from immi­grants who were scheduled for a hearing in Immigration Court and either forgot, couldn’t make it, or just hoped the problem would go away. Failing to appear for a court date is the worst thing you can do to your hopes of immigrating. It will earn you an automatic order of removal (deportation), which means that DHS can pick you up and put you on a plane home anytime, with no more hearings. You’ll also be hit with a ten-year prohibition on returning to the United States and further punishments if you return illegally.

b. denial of visa at U. S. consulate

If you are applying for a nonimmigrant (temporary) visa through a consulate outside the united states, you have no appeal after a denial. The consulate is at least required to tell you the reason for the denial, and often the fastest thing is to fix the problem and reapply. For example, if it appears that you have insufficient funds to support yourself while you’re in the united states, you might find an additional person to fill out an Affidavit of Support on your behalf. You can reapply, but most usually wait a certain amount of time first, for example three months. Ask the consulate for details.

c. denial of Immigrant visa at U. S. consulate

If you are applying for an immigrant (permanent residence) visa, the consulate will give you one year after the denial of your visa application to provide infor­mation aimed at reversing the denial. At the end of the year, your application will close and you must start all over again. There is no appeal from the denial or the closure.

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Don’t attempt multiple, inconsistent applications. The U. S. government keeps a record of all your applications for visas and green cards. If you come back a few years later with a new basis for immigrating, USCIS or the consulate will be happy to remind you of any past fraud or other reasons for inadmissibility. (Changing your name won’t work—by the end of the application process, the U. S. immigration authorities will have your fingerprints.)

I. When All Else Fails, call Your U. S. congressperson

If your case turns into a true bureaucratic nightmare or a genuine miscarriage of justice, your U. S. citizen or permanent resident petitioner or employer can ask a u. s. congressperson for help. some of them have a staff person dedi­
cated to helping constituents who have immigration problems. A simple inquiry by a congressperson can end months of usCIs or consular stonewalling or inac­tion. In rare cases, the congressperson’s office might be willing to put some actual pressure on usCIs or the consular office.

EXAMPLE: Rodrigo, a U. S. citizen, was trying to get permission for his daughter sandra to immigrate from Mexico. She attended her visa interview and was told to come back with more proof that she would be financially supported and not become a public charge. Although Rodrigo’s income was already over the Poverty Guidelines, he found a joint sponsor, who submitted an additional Affidavit of Support for Sandra. The consulate still wasn’t willing to grant the visa. Rodrigo consulted with an attorney, who wrote letters to the consulate—but got no reply. Finally his attorney wrote a letter to Rodrigo’s con – gressperson asking for help. They submitted copies of all the relevant documents so that the congress – person would fully understand the problem. The visa was granted— with no explanation—a week after the congressperson’s inquiry.

Your congressperson probably won’t be surprised to hear from you. Illinois Congresswoman Janice Schakowsky reported that eight out of ten calls from her constituents were complaints about the INS (as USCIS was then called). (See “Unchecked Power of the INS Shatters American Dream,” by Kim Christensen, Richard Read, Julie Sullivan, and Brent Walth, The Oregonian, Sunday, Decem­ber 20, 2000.) ■