Immigration denials, revocations, and Notice of Intent to Deny or Revoke, are an occasional and very frustrating part of any immigration practice. They can result from a variety of circumstances but in almost every case, there is a time limit in which to respond to the government. These denials or revocations tend to fall into one of the following groups:
- Denials required by law, as when you apply for an extension of employment authorization based on an application for a green card that has already been denied or is denied while the employment application is pending. There is little that can be done about these denials, except to re-file the green card or other underlying application if appropriate.
- Denials by immigration officers based on discretion, as when an immigration officer denies an application for a green card or a waiver where there are numerous immigration violations or minor criminal convictions. Although no one violation or conviction can be serious enough to require a waiver, the accumulation of these offenses is enough to trigger a denial. In these instances, we will often recommend a Motion to Reconsider in which we present additional documentation, evidence or arguments not previously submitted. Sometimes, we recommend that the application be re-submitted with more documentation and in the hope of receiving a more sympathetic officer.
- Denials by immigration officers based on a misinterpretation or misapplication of the law. Sometimes the officer simply does not understand the law. In other cases, we have received denials from an overzealous immigration officer who has accused us or our clients of fraud for failing to disclose certain information, only to have the denial overturned and the case approved on appeal.
- Intents to Revoke initiated by consular officials. In a typical situation, the USCIS will approve an immigration application and forward it to a consular office abroad for issuance of a visa. The consular office refuses to issue the visa and sends the application back to USCIS with a recommendation that the approval be revoked. We have been successful in defending the application and convincing USCIS to re-approve the application. In such a case, the consul is bound by the re-approval.
- Denials by Immigration Judges. Here the rule is very clear- you have 30 days from the date of the decision (or 33 if served by mail) to file an appeal with the Board of Immigration Appeals. It is very unwise to file such an appeal without an experienced immigration attorney. In our experience, these appeals very often successful. Immigration Judges, often in a rush to deny a case and move on, make careless mistakes that will result in a successful appeal.
- Denials by the Board of Immigration Appeals (BIA). A denial by the BIA may be appealed to the US Circuit Court of Appeals. This is an extremely complicated process because not all denials are appealable and those that are appealable must be filed within 30 days and will require a very structured (and expensive) legal brief. Even experienced immigration attorneys shy away from these appeals but some cases can have a substantial impact that goes beyond the facts of your individuals case.