The American Immigration Lawyers Association (AILA) has a number of advocacy priorities, one of which is to hold U.S. Citizenship and Immigration Services (USCIS) accountable to ensure the agency remains true to its mission to provide prompt, consistent and fair adjudications to its customers. Now, accountability has several different connotations but what it boils down to is that we want USCIS to stop doing things to block legitimate bona fide applicants and petitioners from accessing the immigration benefits for which they are eligible.
We often hear of problems from one or two member attorneys whose clients suddenly face an obstacle in what should have been a pretty seamless process. Now, immigration law has been compared to tax law in complexity, but there are times it goes beyond ‘complex’ all the way into ridiculous and irrational. That’s often when we do a Call for Examples to request case examples from our 15,000+ members so we can get a sense of the universe of problems our members are facing.
We issued one such Call for Examples recently in response to reports about USCIS rejecting applications and petitions, in many cases months after the application or petition was submitted to USCIS. And wow, we got responses.
Dozens of case examples for green card application (Form I-485) rejected for failing to check certain boxes on the form. Rejections for failing to file an accompanying form which is not necessary for that particular application. Rejections for failing to file the accompanying fee (which in fact was included). Forms rejected because of missing pages (which weren’t missing at all, they were literally right there).
The types of applicants who file I-485 green card applications are eligible for permanent residency through various categories. Some of these eligibility categories include filing via family or employment, through refugee or asylee status, as human trafficking and crime victims, and as victims of abuse. Through the Call for Examples that AILA conducted, we observed several instances of hardships brought on by USCIS’ avoidable rejections and unacceptable adjudication delays.
Several member attorneys have reported barriers to properly filing applications due to not only the agency’s wrongful rejections, but the egregious delays in USCIS mailing back the rejected application or petition. Many members note that the agency is taking several months, in some cases up to 3 months or more, to issue rejection notices with instructions on how to address the specific issue(s) needing attention to ‘properly’ have the case accepted by the Service.
For many I-485 green card applicants, there is a window of opportunity in which they are eligible to file. Historically, USCIS has issued rejection notices within of initial filing, giving ample opportunity to resubmit an application, whether properly rejected or not. Given the delays in receipt of rejection notices, many applicants are no longer eligible to submit their application to USCIS due to missing their initial window of opportunity and subsequent visa retrogression. Several of these applicants unfortunately belong to vulnerable populations, such as those seeking VAWA, U, or T status, asylees, etc.
While unnecessary rejections and delays plague petitioners and applicants, an ongoing global pandemic adds a layer of calamitous implications. Many applicants who fall under these eligibility categories are at risk of contracting COVID-19. We received some reports of foreign nationals at risk of having to return to their countries of origin due to USCIS adjudication delays and improper rejections. To make matters worse, many of these individuals have underlying medical conditions, adding to risk factors should these individuals have to travel.
Let’s look at the application for work authorization (Form I-765). Applicants submitting this form include certain foreign nationals who are in the United States seeking employment authorization. Many foreign nationals filing initial and renewal I-765 applications are facing undeserved and unnecessary burdens due to unprecedented levels of delays and, again, wrongful rejections. Applicants include asylum seekers renewing their work authorization, yet due to delays in issuance of receipt notices (and needing said receipt notices to provide their employer with evidence that the application was filed prior to its expiration) the individuals are no longer able to work, in turn losing their source of income. To add to this snowball effect, renewal of driver’s licenses are affected by these delays and rejections, as many DMV’s across the nation also require evidence of successful filing in order to issue driver’s licenses.
Several other reports AILA has received from our members indicate that many individuals are at risk of losing housing and food, and will not be able to provide for their young children due to losing work authorization, all avoidable situations should the agency function properly and provide these individuals with access to the immigration benefit for which they are eligible. While the reasons cited by USCIS for rejections or delays may seem trivial, the impact can certainly be monumental.
Other reasons the agency cites for rejections include but are not limited to: Rejected for not including a filing fee when the check was right there. Rejected for filing an incomplete form, even though the form was complete, or rejected for not including an accompanying form, when again the form was right there. The list goes on and on. Applicants rejected because they didn’t sign the form (spoiler alert, they did). And don’t forget – at least one form was rejected when the attorney didn’t put a “travel document number” even though the passport number was already clearly indicated in the answer to another question on the form.
It’s important to remember that each of these examples is a person. A person whose ability to work or reunite with family or feel safe in this country has been blocked by illegitimate rejections of paperwork filed in good faith.
This has to change. AILA is advocating to hold USCIS accountable to get things right. So far, USCIS has taken some small steps. Recently, USCIS indicated that it would invite customers to resubmit certain I-485 applications that were rejected for failing to check boxes 9.a., 9.b., and 9.c., or 10 in Part 2 of the application form. Yet more is needed. USCIS should provide equitable relief by accepting back all applications and petitions that were submitted in good faith but were rejected and failed to be timely mailed back by the agency to customers. The agency’s rejection policy is a hinderance to stakeholders and should be reevaluated so that USCIS customers can have full access to all immigration benefits for which they are eligible. We urge USCIS to do the right thing, on this issue and on the other issues AILA recently highlighted in our Policy Brief: Walled Off: How USCIS Has Closed its Doors on Customers and Strayed from its Statutory Customer Service Mission.