Options When Adjustment of Status (to Permanent Resident) Is Denied

If you are an foreign national who has applied for a green card from within the United States, by filling out Form I-485 along with supporting forms and documents, you are using a process called "adjustment of status" or AOS. With any luck, all will go smoothly: U.S. Citizenship and Immigration Services (USCIS) will:

• accept your mailed-in application as complete (instead of returning it to you with a "request for evidence" or RFE, meaning further documents or information)
• schedule you for a biometrics appointment where your fingerprints and photo will be taken, and
• call you in for a personal interview, at which USCIS will hopefully approve your U.S. permanent residence (and will later mail you a green card).

However, it doesn’t always work this way. Sometimes, even after asking for post-interview follow-up documents, USCIS flat-out denies an adjustment of status application. If that happens, you will need to look into urgent issues such as:

• figuring out why the case was denied in the first place
• discovering whether you could be put into deportation proceedings and then ordered out of the United States
• deciding whether it's worth requesting a USCIS review of your immigration case, and
• deciding whether it would make more sense to try starting over with a new application.

We will discuss all those issues and possibilities here.

Figuring Out Why USCIS Denied Your AOS Application

After rejecting your application for adjustment of status, USCIS will send you a written notification informing you of its reasons. The language will be fairly terse, but by now you should have a sense of what it means, based on the questions the officer homed in on at the interview and the documents requested via an RFE (if any).

Among the common reasons for denial are:

• criminal history
• insufficient proof of the sponsor's ability to provide the necessary financial support
• insufficient proof of a bona fide, real marriage (in a spousal green card case)
• ​history of immigration violations such as prior deportations or visa overstays, and
• past use of fraud in seeking immigration or other benefits.

If USCIS Places You in Removal Proceedings After Denying AOS

If USCIS rejects your application for adjustment of status (AOS), and you don’t have a valid, unexpired right to be in the United States (most likely under a visa), USCIS will send you into immigration court (removal) proceedings, by issuing what's called a "Notice to Appear" or NTA. You will then be schedule to have an immigration judge hear your case.

The good news is, going to court is not the worst thing that could happen. Unless something emerged in the USCIS review that made it clear that you are utterly ineligible for the type of green card you were seeking (or if USCIS revoked the petition on which basis you were applying, such as an I-130), the immigration judge can take another look at whether you qualify for admission.

In many cases, USCIS denials are for sufficiently serious reasons that renewal won't be possible, and the judge won't likely be convinced otherwise. But USCIS does make mistakes, so this avenue could work.

Requesting USCIS Review of the Denial

An appeal is not usually possible, depending on the basis for USCIS's decision. The USCIS denial notice will tell you whether you are permitted to appeal.

In certain situations, your best bet might be to ask USCIS’s Administrative Appeals Office (AAO) to review the decision. This is done on USCIS Form I-290B, Notice of Appeal or Motion. However, you will need an attorney’s help with this. The idea is to prove that the USCIS personnel who reviewed your case made a mistake, and USCIS rarely likes to admit to mistakes. You must pay an application fee for this review, which is $800, with exceptions for some humanitarian categories, such as T visas, U visas, and Special Immigrant Juvenile Status (SIJS). (Always doublecheck the USCIS fee schedule for changes before filing.)

It is important to file a request for review quickly. You have 30 calendar days from the date of service of the decision to submit the request. If the decision was mailed to you, you must submit the request within 33 calendar days. Weekends and public holidays are counted while determining the number of days. Once USCIS receives your request to review, it will process your request and inform you of its decision in writing.

Another alternative is to file a motion to reopen or reconsider. This basically means asking the agency to take another look. Such motions are also filed on Form I-290B.

Starting Over With a New Green Card Application

Many adjustment of status denials are made "without prejudice," meaning you can file another application for a green card. This can actually be easier than filing a request for review, because you’re not asking USCIS to admit a mistake.

However, if you don’t have a lawful right to remain in the United States at the current time, you might have to leave the country and either return at another time or do the bulk of the application process through a U.S. consulate. Meanwhile, if you have already spent time in the United States unlawfully, you might not be allowed back in for several years. (That's because you will likely have become inadmissible due to your record of unlawful presence in the United States, and are thus subject to either a 3- or 10-year time bar.)

It's wisest not to make a decision about what to do without consulting an attorney first.

Of course, you will need to make sure that you’ve cleared up whatever underlying problem caused your adjustment of status application to be denied in the first place. Your best best is if it was a misunderstanding, or you didn't provide enough documents showing, for instance, that your sponsor's income is high enough to support you or that your marriage to the petitioner is bona fide.

Unfortunately, not all problems that lead to denial can be cleared up. For example, if you are clearly inadmissible because of a criminal record or affiliation with a terrorist organization, or if USCIS has obtained convincing evidence that your marriage is fraudulent (and it really is), neither appeals nor further applications are likely to help much.

You Might Need to Hire an Immigration Lawyer

Adjustment of status is granted at the discretion of USCIS. If your application for adjustment of status has been denied, you can be subject to deportation (removal) proceedings. Seek the assistance of an experienced U.S. immigration attorney. The attorney can help you decide what to do next, and keep track of whether, for instance, USCIS is moving your case into the immigration court system.