US VISA | OPINION-IMMIGRATION CORNER- My case was denied; when can I reapply?

When a person’s immigration case is denied, it can be one of the most tragic, heartbreaking and depressing times in their life. They wanted to legalize their status in the US, perhaps bring their family over and live the “American dream.” But the denial crushes those dreams.

If your case is denied, is there anything you can do? Is there hope? Do you reapply? Quite honestly, there is no clear, black-and-white answer, as many factors must be considered when evaluating what to do with the denial and if there is hope. I would advise you to consult with an attorney who can guide you in evaluating what to do if the case is denied, whether it is best to appeal, refile a new petition or application, or file a motion to reopen or motion to reconsider.

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These are some of the factors a person would need to consider in evaluating their next step when they receive a denial:

1. WHY was the case denied? To determine if there is hope in a person’s case, it is first important to determine why their case was denied. In some situations, a person may not be eligible for the immigration benefit they sought, or they can get into deeper trouble if they keep filing. For example, if a person was denied because they confessed they were in a fixed marriage, that usually results in a lifetime ban, and no future petition by anyone else (such as a new spouse or an adult US citizen child) can be approved. Similarly, if a person has claimed to be a US citizen, registered to vote or voted in a US election, there usually are no waivers available and it’s unlikely their case will ever be approved. On the other hand, cases or waivers may have been denied because not enough proof or evidence was submitted. In those cases, there could be hope with additional evidence or documentation.

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2. Are there deadlines? When a case is denied, there are usually time limits (typically 30 days) to file an appeal or a motion to reopen or reconsider. If you have received a denial but waited years before doing anything about it or consulting an attorney, the deadline may have long passed. If you try to file a late motion, US Citizenship and Immigration Services (USCIS) may deny it without bothering to read it simply because it was “untimely.”

3. Appeal or refile? Depending on the circumstances of the individual case, it could sometimes be more advantageous to refile a new petition or application than to appeal a denial. By appealing, the person is usually restricted to the evidence “of record,” meaning the documents and evidence they have already submitted, and they have to argue that it was sufficient. With a new filing, the person could provide new, additional and stronger evidence to support entitlement to the immigration benefit they seek. In other words, new evidence is allowed if you refile. Also, in certain circumstances, in refiling, the person can get a new work authorization, which may not be possible if the case is on appeal. Also, in some cases, it is actually faster to file a new case than to wait for the outcome of the appeal. However, before deciding whether to appeal or refile, you should consult with an attorney because there are many other factors, such as the effect of a new filing on a person’s immigration status and, in certain circumstances, they may be required to appeal to hold onto the original filing date.

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4. Do you now have better or stronger evidence? There are some filings, such as fraud waivers, where it is required that the person demonstrate “extreme hardship” to certain relatives, such as their US citizen or lawful permanent resident spouse or parents. It could be that at the time they filed their original waiver, there was not much evidence of extreme hardship, and the case was denied. Before refiling, you have to examine whether there is new or additional evidence that can be presented to greatly increase your chances. Or maybe with the original hardship waiver package, the case was not fully or properly presented or explained.

Just because a person’s case is denied does not necessarily mean there is no more hope. Maybe there is. That is why I would recommend that if your case is denied, you consult with an attorney who can evaluate what is the best next step, and if and when you should appeal, refile or leave it alone. I want to be clear that no attorney can guarantee success, but an attorney can better evaluate your options and chances. And I would, of course, recommend that before you initially file, you should have an attorney help evaluate and package your case, rather than first trying it on your own and getting a denial because it was not properly packaged or presented.

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