Choosing The Right Path In Immigration Is Like Choosing The Right Medicine
Author: New York Immigration Lawyer Alena Shautsova
Imagine, one’s immigration application was denied. What should he/she do: file a motion to reopen, an appeal or simply re-file the case?
What if one came into the country illegally, but now has adult U.S. citizen children: shall she file for a visa overseas with a waiver, or can she still file for a green card (adjustment of status) in the United States, without leaving the country?
One was put into removal proceedings: should he file for cancellation, adjustment of status or asylum?
Just like a doctor has to first correctly diagnose a patient and then prescribe them the right treatment, an Immigration attorney has to look at one’s situation from all angles and determine which application has to be filed and when it should be filed. Primum non nocere (First, do no harm) is one of the principles that is being taught to medical students. In law, lawyers should adopt the same approach. Too many times I meet people who “filed” unnecessary applications, submitted affidavits that are so poorly drafted that they harm a person, rather than add anything to their case; or clients who simply received a very wrong “help.” But most of the times, I meet people who were not explained what they would be filing for and had no idea what they signed...
Let’s look at the situation when one gets a denial, and the denial notice states there is no appeal from the decision (like denial notices for I 485 form, or I 601A). When there is no an appeal opportunity, there is always a re-file opportunity. Or, at least, most of the times, it is possible to re-file one’s application. Sometimes, it is feasible to file a motion to reopen: a denial could have been in error, and even USCIS’ error (in such cases, where USCIS made an apparent error, one does not even have to pay the motion to reopen fees). What is better: to refile or file a motion to reopen depends in each case. For example, I-485 was denied due to USCIS mistake (let’s say they sent you notices to the wrong address). Now, your I 765 is invalid as well, and you cannot work. What do you do? Spend time and potentially money on the motion to reopen, or you will you refile? In this situation, I would probably refile to stay on a safer side. The filing fees will be higher to refile than to file a motion to reopen, but it may take several months just to hear back from USCIS after the motion is filed. In this situation, I would choose time over money.
Filing I 130 for one. This one has to be approached carefully. The I 130 form contains a question: where your relative will be filing for an immigrant visa: in the US or overseas. The filer has to have an idea of what will be happening, potentially several years from the filing date at the time of filing. It is possible to correct a mistake, of course, but it costs money, and it is always better to avoid the mistake from the beginning. So, if one chooses an “adjustment” option, but the relative cannot adjust, one will have also to file another form (after the I 130 is approved) to move the case to the consulate processing. (This will be the case in many I 601A situations). If one incorrectly chooses consulate processing, he/she may lose the I 130 approval all together: if a person is not acting on I 130 that was transferred to the consulate processing, the entire process may be wasted).
The immigration process, if one knows what to do, is simple, but is far from being easy.