The USCIS seems to be rejecting more cases recently. Its common knowledge that the USCIS uses highly critical and some times arbitrary standards of review to reject as many cases as it can as a tactic to reduce its case load. I believe that these tactics have been ramped up in response to the overwhelming case load the USCIS experienced after the significant filing fee increase that took effect after July 31, 2007. It is not uncommon for the USCIS to reject a case that should be approved for reasons that seem arbitrary at best. Dealing with a USCIS rejection is frustrating and costly. Unfortunately, there typically isn't any informal and cheap method of convincing them to reconsider their decision no matter how ridiculous is may seem.

I recently had two cases rejected. Both were adjustment of status cases. I have been practicing immigration law for about 7 years and I have never had an adjustment of status case rejected. The one case in particular is a fantastic example of just how ridiculous a USCIS rejection can be. Here is the exact language from the Notice of Decision (this is the document they send you telling you that they've rejected your case):

On January 25, 2008, in response to the Service's request for evidence you submitted Form I-693, the Supplemental Form to Form I-693, an English translation of your birth certificate, the sponsor's federal income tax returns for the most recent year, and a Form I-864 completed by a joint sponsor. However, you failed to submit a copy of your birth certificate or the sponsor's W2s for the most recent tax year.

Notice that in the first sentence it states that the requested birth certificate was provided and then (in the very next sentence) states that the birth certificate wasn't provided. If this doesn't make you want to bang your head against the wall I'm not sure what will. (*Also not that the decision admits that the tax returns were provided but the W2s were not. Have you ever seen a tax return that didn't include a W2?) So, that's how absolutely ridiculous it can get.

Through experience and trial and error I have learned that banging my head against the wall does not achieve approvals for my clients. Fortunately there are some options if your adjustment of status case is rejected.

Remedies for Rejected Adjustment of Status Cases.

There is no appeal available to applicants for adjustment of status who are denied. The only remedy available in these cases is to file a motion to reopen the case and/or reconsider the decision pursuant to CFR §103.5. This is a procedure wherein the applicant is asking the USCIS officer who denied the case to reopen the case and/or reconsider his decision to deny the case. Its not a great remedy to be able to ask the person who made the decision to change his or her mind but it all that's available. If the USCIS officer denies the motion there is no appeal and no other remedy available.

Filing a Motion for Reconsideration

A motion for reconsideration is a fairly complicated procedure as it requires (in most cases) the citation to legal authority which is generally beyond the ability of the layperson. If you can afford to pay an attorney to assist you with this I would advise it. However, if you can't or you want to do it on your own, here's what you need to do:

1. Complete Form I-290B You can either make your argument in the box provided or do so in a separate document or “brief.” It is critical that you provide documentary evidence supporting your argument. If you do not have any documentary evidence and you simply want to beg them to change their mind I would suggest you save your money. (Be sure to include a copy of their Notice of Decision for easy reference.)
2. Obtain a certified check or money order for the correct filing fee. (*At the time of this article the fee is $585.)
3. Mail the I-290B, any brief, supporting documentation, and the check to the USCIS office address provided in the Notice of Decision. (*I've received decisions before which did not set forth instructions for filing a motion for reconsideration although they are required to do so. The motion should be filed with the USCIS office that made the decision. The office address should be on the letterhead of the Notice of Decision.)

*YOU ONLY HAVE 30 OR 33 DAYS TO FILE A MOTION FOR RECONSIDERATION FROM THE DATE IT IS ISSUED.

Other adjustment of status remedies

Fortunately, in most cases, adjustment of status cases that are rejected are rejected "without prejudice." This means that the applicant can simply start over and file a new adjustment of status petition. Because the filing fees are so high for adjustment of status petitions and they take so long to process, this is not often an attractive option. However, it may be a better option than filing a motion for reconsideration on your own.

Adjustment of status applicant's whose cases are rejected are subject to deportation. Although it is very unlikely that the USCIS is going to actively pursue deportation proceedings, if a denied adjustment applicant is put in deportation proceedings the application for adjustment of status application can be renewed as a defense to deportation in those proceedings.