Immigration in the United States and obtaining a green card has become more and more challenging. RFEs, NOIDs, and even denials have significantly increased in recent years.
It is especially noticeable when it comes to H-1b, L-1, EB-1, and NIW cases. Those petitions have encountered a dramatic increase in RFEs and NOIDs. Furthermore, it is not rare that receiving these notices lead to a higher number of denials comparing to the previous years. Not only that, these trends are discouraging, frustrating, but those are costly, as well, and can affect, in the greater instance, your plans for the future.
No matter if you have been issued an RFE or NOID, or your case has already been denied, you may wonder if there are any options left. What can you do? Receiving the denial notice issued by USCIS means that you are given the opportunity to file a motion to reconsider or reopen, or you can appeal the decision (Form I-290B). The deadline that you will have to meet is 33 days of the decision date. Besides, there is a filing fee of $675.
If you think the decision was unjust or wrong, it may seem worth it to file the I-290B form. According to the denial notice, this is the only option you have. Otherwise, you have to start all over and refile your case. This form is used when you want to file an appeal with the Administrative Appeals Office, specific appeals of the Immigration and Customs Enforcement’s denial of a Form I-17, or a motion with the USCIS office that sent out the latest decision. There are circumstances where you cannot use the I-290B form, so make sure to check the USCIS website and learn more about it.
An appeal or motion to reopen/reconsider is a wise and necessary strategy for some situations. Still, the long processing time that takes somewhat between 6 and 12 months, or in some cases, it can last longer, and not so optimistic expectations of the outcome make some immigrants give up from this process and just refile their petition and go through the process all over again.
But, before you feel disappointed, hold on – there is one more option left. According to the Administrative Procedure Act (APA), you can file a lawsuit against the US government in federal district court when agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not following the law.” 5 U.S.C. § 706. There is an advantage of this approach since the federal court system is independent of USCIS, has greater authority, and can override a USCIS decision.
The APA does not require exhaustion of remedies, which means once you get a denial from USCIS, you can file the lawsuit with the federal court. Still, if you choose to file an appeal with the AAO, then a federal lawsuit has to wait until the AAO issues a decision. Furthermore, this legitimate demand may make USCIS save itself from an unfavorable decision and reopen your case and approve it.
Eventually, you can also file for a different visa if you get denied by USCIS in the event of if you or/and your spouse were not eligible for the visa. In that case, you could learn about other types of visas that better match your immigration situation.
To remind you, please take this article as informative and consult an immigration lawyer so you can jointly choose the best option for your case. Any decision made about a denial after a NOID or RFE should be made with careful consideration and only with the help of a qualified and specialized immigration lawyer.