15 Mar 2023 Is There Hope After A Denial? (Part 1)
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 the 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 used by USCIS (U.S. Citizenship and Immigration Services) 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 the 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 more 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 might be possible to get the case approved:
Child has aged out and is not included in the petition. However, it could be possible that 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 married for love, the petition should be approved. 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 far better evidence and packaging of the bona fides of the marriage, etc. The denied family petition could also be appealed to the Board of Immigration Appeals (BIA).
Petitioner died. Ordinarily, if the petitioner dies, the petition dies with him. However, in certain circumstances, the beneficiary may be eligible to apply for humanitarian revalidation or reinstatement of his petition. Or if the beneficiary was in the U.S. when the petitioner died and has continued to live here after the death of the petitioner, it could be possible to process the case without even needing to seek humanitarian revalidation.
These are only a few examples of where there could still be hope after a denial. In a future article, I will discuss more reasons there could be hope despite a denial. Although there are no “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 it.
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