- The broad discretion of the USCIS
- Steps to take if your I-485 application (or other application) is denied due to improper documentation
- The 2018 Trump administration memo – a summary
- A November 17, 2020 update to the 2018 USCIS broad discretion memo
- What’s the difference between an RFE and a NOID?
- What is an I-485 application?
- Common reasons for denial of an I-485 application
- Guide to Filing an I-29OB Motion To Reopen/Reconsider a Denial – Such as a denial of an I-485 Adjustment of Status Application (while I-130 remains pending)
- Where to file Form I-290 B
- How an experienced immigration lawyer can help you file your application correctly
ATrump administration memo issued, effective September 11, 2018, is making it harder to obtain approval of green card (I-485) applications.
The memo gives the USCIS broad discretion over what conditions can cause the application to fail. The discretion applies to many family-based green card situations.
Part of the difficulty in seeking permanent legal resident status for relatives is that the I-485 application normally requires an I-864 affidavit of support – which is very complex. The Trump administration policy memo means the application can be denied – for almost any problem including any mistakes on the I-864 affidavit – without an opportunity to fix those mistakes.
The broad discretion of the USCIS
The USCIS now provides only two basic options for anyone who submits an insufficient affidavit of support or an insufficient petition/application. These options are not subject to identifiable standards.
The two options are:
- To give the applicant a chance to fix the errors by sending the applicant a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID)– Before denying the I-485 application.
- To deny the I-485 application.
Steps to take if your I-485 application (or other application) is denied due to improper documentation
The applicants can then:
- Refile the I-485, I765, and I-131 – and pay another $1125 filing fee or possibly a larger filing fee.
- File an I-290 B motion to reopen/reconsider the I-485 application – for $675 plus file all the forms correctly this time. Generally, with the help of an experienced immigration lawyer, this option is preferable. Usually, the I-290B is decided within 2 months, and if approved then the case picks up right where it left off. The I-765 and I-131 are reinstated. There’s no need for a new medical exam. Work authorization should be approved soon too if the USCIS agrees to reopen/reconsider the I-485 application.
The request to reopen/reconsider, while generally better than filing a new application, is fraught with uncertainty. There is no clear standard of review other than the discretion of the USCIS official.
If the I-485 application is denied:
- The I-130 remains pending
- The I765 and I131 are denied too – since they are part of the I-485.
The 2018 Trump administration memo – a summary
This memo, issued on July 13, 2018, gives the USCIS discretion to deny the application – without first giving the applicant an RFE or NOID. If an RFE is issued, the USCIS can issue another/secondary RFE.
The effective date of the Trump administration memo is September 11, 2018. The memo applies to all applications (such as I-485) applications – and other petitions and requests.
The main provisions of the policy memorandum are:
- Prior standard. A prior 2013 memo provided that an RFE should be sent, “when the facts and the law warrant.” Generally, an RFE should issues unless it was clear (no possibility) that the defects couldn’t be cured. This means most applications that were defective would result in an RFE – unless there was a statutory reason for the denial.
- Full discretion. The July 2018 PM (effective September 2018) gives the USCIS adjudicator full discretion to decide the application on the submitted record. The burden is on the applicant to establish eligibility – to submit the correct record the first time he/she applies.
- Reason for the stricter change. The July memo states that the reason for the new policy is to “discourage frivolous or substantially incomplete filings used as placeholder filings and to encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. The purpose of this policy memo is NOT to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility.” The memo states the new policy “will allow USCIS to focus resources on evaluating cases rather than on tracking down missing evidence.”
- Exempt applications/petitions. The new Trump policy does not apply to applications, petitions, and requests submitted before September 11, 2018. The 2018 policy memo also doesn’t affect certain Deferred Action for Childhood Arrivals (DACA) cases – and certain other cases such as certain asylum, refugee, and NACARA cases.
Some of the forms specifically mentioned in the policy memo that can be denied without an RFE or NOID include:
- “A family-based Form I-485 Application to Register Permanent Residence or Adjust Status submitted without a Form I-864, Affidavit of Support Under Section 213A of the INA.
- A Form I-129 Petition for a Nonimmigrant Worker for H-1B nonimmigrant worker submitted without any evidence of the beneficiary’s education or experience (the petition is required by regulation to establish that the beneficiary qualifies for the specialty occupation).”
The USCIS states that the purpose of this memo isn’t to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility. Yet, it is clear that many applications are, in fact, being denied for those reasons.
Make no mistake about it. The 2018 memo is a major policy shift that places immigration applicants at the mercy of the USCIS officer. The July 2018 memo even encourages the USCIS officers who issue RFEs or NOIDS to decide the cases based just on the information submitted – instead of continual requests for information.
What’s the difference between an RFE and a NOID?
A Request for Evidence (RFE) is generally used to give the applicant a chance to submit the information that was missing from the original application – such as a marriage certificate or financial records.
A Notice of Intent to Deny is a USCIS letter that indicates the applicant still hasn’t shown he/she is eligible for the relief/benefit – even though the initial documentation seems sufficient.
What is an I-485 application?
According to Immigration Direct, Form I-485, an Application to Register Permanent Residence or Adjust Status, is the USCIS form applicants use to change their immigration status to permanent resident status. Applicants who have entered the US legally can apply for this change on various criteria including:
- U.S. Citizen Petition for a Preference Relative to Become a Lawful Permanent Resident
- U.S. Citizen Petition for an Immediate Relative to Become a Lawful Permanent Resident
- Becoming a Lawful Permanent Resident (Green Card Holder) Through a Job Offer
- Becoming a Lawful Permanent Resident (Green Card Holder) Through Asylee Status
- Becoming a Lawful Permanent Resident (Green Card Holder) Through Refugee Status
- Green Card Eligibility
Common reasons for denial of an I-485 application
Some of the reasons your claim may be denied include the following:
- You fail your medical exam. This can include missing information such as a failure to show documentation that you have the necessary vaccinations.
- Certain criminal violations.
- Immigration violations such as illegal entry or abuse of the visa process
- Noncompliance with the application requirements. This is the main defect that normally would have resulted in an RFE or NOID – but may now cause a denial. Applicants need to:
- Accurately complete the necessary forms
- Read the instructions completely
- Pay the required filing fees
- Provide the necessary documents
- Provide originals or copies (depending on whether you’re filing from the US or abroad) including:
- Birth records such as birth certificates
- Marriage certificates
- Divorce decrees
- Valid visa status
- Failure to Attend Appointments. This generally includes an interview and a fingerprinting appointment – depending on where you’re filing from.
- Failure to provide proof of employment (generally through an I-140 form) or proof that you properly changed jobs
- Failure to provide proof of a family relationship (generally through an I-130 petition).
- Failure by the Immigration decision-maker- such as when they lose some of your documentation.
Applicants for permanent residential status must also provide proper documentation:
- To show they have sufficient assets and income to support themselves (based on their household size) – when they file their I-864 Affidavit of Support. If the petitioner can’t meet this requirement, they need to obtain a qualified joint sponsor who can meet the requirements.
- To show that the beneficiary will not likely become a public charge – someone who is dependent on the US government for long-term financial support or care. This part of the application will be reviewed very closely and will include a review of the immigrant’s assets, income, and resources.
According to Boundless.com:
- The filing fees for some applications are extremely high. The cost of marriage green cards is now $1,760.
- If you don’t have current immigration status at the time of the denial – you may be placed into removal proceedings – which could result in deportation.
In short, it is critical to review your initial I-485 application with an attorney to help ensure your immigration application is correct the first time.
According to Boundless, “USCIS provides only one specific example of a visa application that would be treated differently under the new policy: If a green card application (I-485) is missing the required financial support form (I-864), then USCIS will immediately deny this application based on lack of sufficient initial evidence.”
Guide to Filing an I-29OB Motion To Reopen/Reconsider a Denial – Such as a denial of an I-485 Adjustment of Status Application (while I-130 remains pending)
If your I-485 application is denied and you are not given an opportunity to correct missing information through an RFE or NOID, then you can file an I-290B motion to essentially ask that the USCIS reopen or reconsider your application – provided your I-130 is pending. An I-130 is a Petition for Alien Relative.
The I-290 B motion, according to the USCIS, may be available for the other permanent status requests too – which your immigration lawyer can explain.
Generally, you must file the I-290 B motion within 30 days from the notice of denial along with the filing fee.
You should work with an experienced immigration lawyer who can help you properly fill out the motion form, review what information was missing from your original I-485 applications, and review what other forms and documents must be provided – and where and when they must be filed.
Where to file Form I-290 B
The form should be filed at the appropriate address listed at the USCIS Direct Filing Addresses for Form I-290B, Notice of Appeal or Motion page. This form should not be filed directly with the Administrative Appeals Office.
How an experienced immigration lawyer can help you file your application correctly
The Trump memo gives complete discretion to the USCIS to determine whether your application for legal permanent status or another request should be granted. The USCIS can deny your application if you fail to dot every “i” and cross every “t.” They can deny your application if just one piece of information is missing or one item on the firm wasn’t filled out correctly.
An experienced lawyer helps sponsors and immigrants:
- File the correct forms
- Complete the forms the right way
- Provide all necessary documentation
- Submit all the forms and documentation in a timely manner
- Submit all the forms and documentation to the correct office
- Address a range of legal and practical immigration issues
We also help you file the correction motion to reopen and/or the correction motion to reconsider a denial of your I-485 immigration application.
Immigrants and sponsors who are seeking US legal immigrant status (such as permanent legal status for a relative) should know that the Herman Legal Group has the experience and skills to help you file the correct forms and to provide the correct accompanying documentation.
Herman Legal Group helps with I-485 adjustment of status applications, I-864 affidavits of support, and other immigrant applications, petitions, and forms. Our immigration attorneys are based in America and work across America. Our lawyers speak different languages and understand different cultures.
For help obtaining Adjustment of status approval – or responding to a denial of an I-485 application, call Herman Legal Group at 1 (800) 808-4013 or complete our contact form to speak with us.