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Why May a Green Card Petition/Application be Denied

Posted by Uzo Akpele | May 27, 2023 | 0 Comments

4042503295Sometimes one does not receive the decision which one wants from the USCIS.  Their application may be denied or threatened with denial. Or even sought to be revoked after it has been approved.

Requested Documents were not submitted. The CIS may request documents  before the interview; during the interview or even after the interview.  The USCIS may even issue a Notice Of Intent To Deny which requires the parties to provide information.   All the requested documents have to be submitted within a given time or the application will be denied.  If an applicant is experiencing a delay in obtaining documents, it is advisable to request an extension from the CIS.  SUBMISSION OF FALSE OR FRAUDULENT DOCUMENTS WILL LEAD TO A DENIAL AND OTHER CONSEQUENCES.

Parties do not show up for their interview. If one (or both) of the parties does not show up for the interview, their petition/application will be denied. The CIS is no longer tolerant about parties missing interviews. If a rescheduling is needed, the parties have to request in good time and provide a REASONABLE explanation why a rescheduling is being requested. Otherwise, the petitioner and applicants must attend the interview.  

Adjustment applicant is not admissible. The non-U.S. citizen may be found inadmissible and his green card application denied. Reasons for this could include convictions for certain offenses (both outside and in the U.S.); certain communicable diseases (and the applicant has not applied for a waiver); habitual drug use; certain mental illnesses; not meeting the affidavit of support requirement. The CIS may still approve the relative petition in such a case as this and the non-USC citizen may be able to file another adjustment application if he is able to rectify the problem which caused the denial.  

Invalid Marriage. An invalid marriage will result in the denial of the relative petition. When an underlying relative petition is denied, the adjustment application is also denied. A marriage will be invalid if any of the parties to the marriage is not properly divorced before entering the marriage on which the application package is based. Any party who has been previously married should ensure that all marriages which that party had previously entered into were properly ended.

Sometimes a party would have obtained a divorce outside the U.S.  Generally, the CIS will accept a foreign divorce where (1) the divorce parties got divorced in the place where the parties got married; (2) they lived in that place as a married couple; (3) they were present or represented in divorce proceedings; (4) they are citizens of the country where the divorce was given. Also, the divorce document must be verifiable and pass scrutiny (it is checked for authenticity),

An example of an acceptable foreign divorce would be: D married E in Nigeria while living in Nigeria. D and E divorced in Nigeria before D came to the US.  D is now married to F.  D's Nigerian divorce would be acceptable to the CIS if D produces the proper divorce document – a decree absolute.  If it is not possible for the non-U.S. citizen to return to his country to obtain a divorce, he could obtain a divorce in the U.S. by following the process in the state where he resides.

Marriage Fraud is another reason why a petition (and in effect the adjustment application) could be denied.  It presents a very serious problem for the parties as the USCIS is saying that it has determined that the marriage was entered into only for the purpose of obtaining a green card and not for building a life together.  In such a case both the petitioner (US citizen) and the applicant (non-US citizen) will be prosecuted.  Further, the non-US citizen will likely find himself facing removal proceedings in immigration court.  More seriously, he will be barred from receiving a green card through any family member.  The US citizen could be barred from filing a petition for another person.

A finding of marriage fraud is not made lightly.  The USCIS normally carries out its investigations once it comes upon an application that meets some of its fraud markers.  It could look up lease or mortgage records, check bank accounts, visit the homes of the parties, talk to neighbors, check social media -- all while investigating.  The petitioner and applicant are usually given a chance to explain and refute USCIS findings – through being called for a second interview; or through being issued a notice of intent to deny – before the USCIS makes its finding of marriage fraud.  

A finding of marriage fraud is a serious matter and if the parties feel that it has been wrongly made, they should endeavor to fight to have it reversed.  

What Does the USCIS Do Upon A Denial

When an adjustment application is denied, the  non-US citizen is usually referred to immigration court for removal proceedings.  Permission to work/travel is revoked.  In immigration court, the non-US citizen may apply for any relief that is available to him and can ask to have their adjustment application re-examined by the immigration judge.

Denial of a relative petition may be appealed.  A US citizen spouse may also re-file the I-130 relative petition.  If the happens, the non-US citizen spouse may request the immigration court to give a long continuance to allow the USCIS time to review and  give a decision on the new relative petition.  The spouse will return to immigration court when the new relative petition is approved to adjust status in court, or to ask for his case to be closed and returned to the USCIS for a decision.

The last things to be said  are (1) that the right to marry any person of one's choice is protected by the US constitution, so one should not have any fear while petitioning for one's spouse; (2) there is no standard way for a marriage relationship to be run – parties to a marriage have to determine how to work out their marriage.  (3) In presenting oneself to the USCIS however, one must be prepared to show exactly that they did intend to set up a life together at the time they got married and that their marriage is not simply for immigration benefits.  Really, that is all the USCIS is asking.

If you have received a Denial Notice, Notice of Intent to Deny, Notice of Intent to Revoke,  our office can help you assess and assist you to respond to USCIS.    Call us at 404.250.3295 to schedule a consultation.

About the Author

Uzo Akpele

Uzo Akpele was born and raised in Nigeria. In 1986, she began studying law at The University of Nigeria, graduating in 1990. In 1991, she was admitted into the Nigeria Bar. Upon moving to the United States, she again studied law at The University of Georgia School of Law, from where she graduated in 2000.


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