Permanent Residence Generally There are three avenues to permanent residence, outside of removal/deportation court proceedings:
(1) Marriage and close family relationship.
All three involve a sequence of approvals by one or more US government agencies, including USCIS (US Citizenship and Immigration Services), an agency of the Dept. of Homeland Security (DHS).
All three require interviews for final approval. For (1) and (2), the foreign national ("the client") may have to attend the interview at a US consulate or embassy in Mexico or overseas. Eligible individuals will have their interview within the USA at a USCIS office. All asylum cases, item (3) above, have interviews at a USCIS asylum office in the USA. After one year of approved "Asylee" status, the client may then apply for permanent residence.
At each step, the particular government agency may raise formal questions, which are sent by mail to the lawyer or client or other interested party, such as a US employer or sponsoring family relative. These requests for action are time-sensitive and must be responded to adequately and timely or the case will be forfeited.
At the end of each stage, a decision is made -- either an approval or a denial. If it is a denial, the client and related parties may be able to file an appeal (with exceptions discussed below) to a higher authority, or to request that the agency (such as USCIS) review its decision for error and/or consider new evidence to prove the necessary facts to support approval. These too are bound by strict time limitations, generally 30-33 days.
While processing times for USCIS review of applications are available online (see https://egov.uscis.gov/processing-times/), listed by forms number and USCIS geographic service center, it is difficult to determine reliably the length of time for either (a) responses to USCIS challenges or (b) appeals and motions to reopen or reconsider. USCIS Challenges and USCIS Denials USCIS responses come in three forms:
(b) Request for Evidence (RFE).
(c) Notice of Intent to Deny (NOID).
The Trump administration has been aggressive on pulling the "reject" lever for cases that do not appear to meet minimal standards. Even properly-completed applications with unnecessary fields left blank will trigger a "reject" .... meaning the entire filing package has been sent back and must be reviewed and amended appropriately. Meanwhile, valuable time is lost.
RFE's and NOID's are appropriate where the case meets minimal requirements but the documentary evidence is challenged as inadequate. The notice typically contains "boilerplate" or template language, an excerpt from appropriate law, and one or more paragraphs detailing the USCIS position. Depending on the type of application, USCIS will grant a response period of 33 or 87 days. The attorney and client review the USCIS notice for accuracy -- occasionally the USCIS officer, who is typically time-pressured to review applications, may have overlooked a piece of evidence, or may be applying the law incorrectly -- and draw up a plan to respond. The attorney writes a cover letter explaining the response and includes a listing of the evidence which is being submitted. The response "package" is sent by Priority Mail or FedEx to the USCIS office which is reviewing the application, and the client and lawyer wait for a decision.
In some instances, the active review of the case by USCIS comes at the end, at or after an interview at the local USCIS "field office." The parties are given a written request letter and an appropriate time to respond.
What if an application is denied by the USCIS service center or USCIS field office? If the client or attorney do not respond within the 30-33 days period, it becomes final. Depending on the stage of the process, and also depending on the nature or type of the application, a denial might mean that the client is at risk of receiving a notice, called a Notice to Appear, to inform him or her that the removal/deportation process has begun against him or her. From that point forward, USCIS no longer has responsibility for the application. Any new application for relief -- permanent residence or asylum -- may only be sent to the Immigration Court, not to USCIS.
Q: What are the tools to respond to an adverse decision -- a "denial" -- by USCIS?
A: There are three:
(i) A motion to reopen, to offer new evidence that will prove the application is approvable.
(ii) A motion to reconsider (or "motion for reconsideration"), to request USCIS to review its decision for errors, as pointed out in the lawyer's motion papers. For example: The USCIS decision has overlooked evidence. It is mis-applying the law. It is overlooking a relevant law. It is refusing to use discretion when it is required by the law.
(iii) An appeal. Unlike the two motions, which are available to all applications, an appeal is not. For example, you can't appeal a denial of an application for permanent residence (Form I-485) .
If the motions or appeal are reviewed and denied, then an appeal may be made to the "AAO" or "BIA." Visa Challenges and Visa Denials The US Dept. of State ("State Department" or "DOS) reviews applications for visas, both for temporary periods ("nonimmigrant visas") and for permanent residence ("immigrant visas"). DOS has "consular offices" for visa processing and interviews at US embassies and consulates in Canada, Mexico, and most other foreign countries. Each type of visa has its own particular requirements. Most nonimmigrant visas are heavily restricted by a law called "section 214(b)" (two-fourteen-bee) that gives DOS the right to refuse a visa unless the visa officer or staff member is convinced that the client has a home, family, or other strong ties which will compel the client to return to after the stay in the USA. The law, section 214(b), actually "stacks the deck" against a client being able to prove this, by creating a legal presumption that the client is really coming to stay indefinitely in the USA. It is a law that is all-too-powerful in the hands of US consular personnel -- and often the review of the visa may not even be made by the consular officer, but by local-office staffers. I call this "front-desking" a visa application. It is not fair, but it's done.
In any event, in the course of a visa application, the embassy or consulate may request evidence, before or during the visa interview. This can be a sensible request for a missing or supplemental item. This is what the visa officer's guide requires. Too often in the past several years, however, we have seen, especially in cases involving proof of financial responsibility (the "public charge" question), that the decision has been taken to shortcut the request procedure. Instead an outright visa refusal has been made, without giving the client the opportunity to respond.
Q: What is the appeal process, in case of visa refusal?
A: It is a fact of life, and law, that clients have drastically fewer rights when they are outside the United States, even in US consulates and embassies. There is no direct "appeal" process. There is no "motion" option. Instead the lawyer will attempt to resolve the issue with the consular officer or superior. Sometimes matters can be reasonably resolved, when what might be a misunderstanding or miscommunication is cleared up. If the matter cannot be solved by a cordial professional exchange, then the lawyer reviews the case to identify any error of law and, if one can be identified, the lawyer requests review and guidance from the State Department. If the State Department agrees, then it sends the consular section a request -- not instructions, but a request -- to review its decision.
If the motions or appeal are reviewed and denied, then an appeal may be made to the "AAO" or "BIA." US Dept. of Labor - "PERM" Cases In many employment-based cases, the first step is an employer-driven recruitment process under the direction of the US Dept. of Labor ("Labor Department" or "DOL"). This process is defined by the acronym "PERM." The purpose of the PERM process is to prove that the employer has tried unsuccessfully to identify qualified US workers, to make the case that the job offer to the foreign national client is now appropriate, and a permanent residence case may continue.
After the US employer has completed the recruitment process, and documented its compliance with the PERM requirements, it electronically files the appropriate form with DOL On review of the form, DOL may approve the case … or it may request additional proof that the employer has complied with the PERM requirements. This stage is called an "Audit" which is similar to the RFE or NOID with USCIS, above. The employer is given 30 days (not 33 days) to comply.
Upon review of the Audit response, DOL may approve or "certify" the process, or it may deny the case. If DOL denies the case, the employer and lawyer will have 30 days to file an appeal to the BALCA (Board of Alien Labor Certification Appeal).
Upon review by BALCA, the employer will either be notified of a denial or will be given 30 days for the lawyer to file a memorandum of law in support of the employer's position, that it has met all legal requirements.
If BALCA approves the appeal, the employer will move on to the USCIS phase and file an immigrant visa petition (Form I-140). The remaining phase is the client’s application for an immigrant visa, abroad, or if eligible, and application for permanent residence (Form I-485).