MANY people believe that once their case is denied, that is the end of the line. No more hope or chances. There is nothing more they can do, and the case is now dead. However, depending on the reasons for a denial, it could still be possible to salvage the case and get it approved.
The first thing that should be done is a thorough and detailed analysis as to WHY the case was denied. What were the legal and factual bases relied on by the government to support that denial? Were the proper legal standards and burdens of proof utilized by USCIS or the U.S. Embassy in supporting the denial? Were there any misunderstandings or miscommunications that created confusion and resulted in a denial? (For example, the person was nervous, didn’t understand a question and gave a wrong answer, etc.). Did the person fail to fill out the forms correctly or include the required documents or information?
The next thing to evaluate is WHAT can be done to overcome the denial. Is a waiver available to overcome the denial? Could additional documents or other evidence prove eligibility and overcome the denial? Is it possible to seek reconsideration or reopening of the case? Can or should the case be refiled? Can the case be appealed, and what would be the grounds for appeal?
There are several reasons a case could be denied, including the following, where it could be possible to get the case approved:
Child aged out and therefore not included under a petition. However, it could be possible the child could still be eligible under the Child Status Protection Act (CSPA).
Marital petition denied because USCIS thought the marriage was fixed. If a couple truly married for love, the petition should be approved. However, in some cases the couple does not fully document or prove the bona fides of the marriage (they may not have enough joint documents, they live apart because of work, etc.). If they receive a notice of intent to revoke or the case is already denied, it could be possible to better document the case, refile with a far better packaging of the bona fides of the marriage, etc. The denied family petition could also be appealed to the Board of Immigration Appeals (BIA).
In a future article, I will discuss more situations where there could still be hope despite a denial.
Although there cannot be any “guarantees” of success, if your case was denied, you should consider consulting with an attorney, who can evaluate your situation, and determine if there is hope in overcoming that denial and assisting in helping you reverse the denial and your case approved.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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