What is the status of a person seeking a greencard whose case is denied and is waiting for another interview based on appeal in Texas?
My interview for a green-card based on marriage is in November in Dallas. One of my friends told me that how the green card application through marriage goes all depends on the interviewing officer and that he/she can deny anyone if the interviewing officer does not like the applicant.
If something like that happens, where my green card application through marriage is denied, is there any chance to appeal? How long does it take after an interview to go to another interview?
Thanks for your inquiry. As a general rule, the denial of an application for adjustment of status (Form I-485) CANNOT BE APPEALED. Rather, the rules provide that a denied application can be renewed before an Immigration Judge (IJ) in removal proceedings.
Thanks for your inquiry about appealing a green-card interview status after denial.
As a general rule, the denial of an application for adjustment of status (Form I-485) CANNOT BE APPEALED. Rather, the rules provide that a denied green-card application can be renewed before an Immigration Judge (IJ) in removal proceedings.
Now I would take your friend's advice on the officer denying the I-485 based on whether the officer likes you with a little grain of salt. The officer has to have a basis upon which to deny the application. If the application for residency is based on marriage, most denials are based on the government's conclusion that the marriage was not entered for the right reasons such that it does not reflect a bona fide relationship. The Form I-130 is the portion of the process which is filed to establish the validity of the marital relationship and if the I-485 is based on the I-130 and the I-130 is denied, so too will the corresponding Form I-485 be denied.
The I-130 is a separate application with separate appeal issues. A Form I-130 CAN be appealed. The appeal is filed with the CIS office that issued the appeal, but jurisdiction over the appeal rests with the Board of Immigration Appeals (BIA).
These different appeal processes can lead to odd ball answers that different attorneys and different non-attorneys give when it comes to the denial of a case like yours. If either the Form I-130 or the Form I-485 are denied, Citizenship and Immigration Services (CIS) will often place the foreign national spouse in deportation proceedings if their immigration status has expired at the time the denial was issued. If the foreign national is placed in removal proceedings then the IJ will generally assume jurisdiction over the I-485. However, the IJ NEVER has jurisdiction over the consideration of an I-130 (or the appeal of an I-130).
As a general rule, a foreign national will be permitted to have their case remains pending and open before the IJ while they are either trying to appeal a denied I-130 or perhaps seeking to refile a new I-130. Sometimes it does not pay to appear a denied Form I-130, rather the better approach can often be to file a new petition and hope that in so doing you can quickly correct whatever problems resulted with the denial of the I-130.
Whenever cases like this get denied it is a pain. The explanation of what happens, how it happens and when it happens is rather difficult and it is confusing to immigration officers, clients and IJ's alike. While one would hope that the system of reviewing all of this would be centralized with the IJ, that is just not the way it works
If your interview on the marriage case occurred in November 2011, I would highly recommend finding a qualified attorney to look into the matter. You are in Dallas and each CIS Field Office has its own ways of doing business and in giving attention to cases that are a little older than others. Here in Orlando I would consider filing an action in federal court to get your case moving depending on the circumstances. If the Dallas Field Office has a good attorney inquiry system perhaps giving CIS some additional time is a better approach.
Our interests as attorneys should be to have your best interests in mind and to get your case resolved as quickly as possible with as little cost as possible. Many attorneys take the more passive approach which is to beg and plead CIS to complete what was started. I am a little more aggressive in that I think that CIS should put an older case at the front of the line. No reason why you should have to wait if people who filed months after you have already received a decision in their case. I would go to federal court.
This is a complex set of answers regarding your green card application through marriage. An officer should not deny anyone they don't like. They should have solid factual basis and legal reasoning to uphold the denial.
If you're properly prepared for the interview and retain an excellent lawyer, many of the issues will be resolved prior. As well, the lawyer will be in a place to advise you regarding any strategy subsequent to a denial.
Working backwards from the viewpoint that your case will be denied is actually a good strategy as you'll see the issues surrounding your green-card interview denial more clearly and be in a better position to address them.