For many, the I-485 adjustment of status will mostly be a waiting game for their green card with little to no hiccups. For some, they will, unfortunately, face denials. There are a number of options individuals can take if their I-485 adjustment of status application is denied, however, it will depend on the specific circumstances of the case, the procedural posture of the case, and the reason for denial. Adjustment of status in the United States has additional eligibility requirements, such as maintaining nonimmigrant status and not working without authorization, that are not present for consular processing. With that in mind, this article is going to discuss denials of I-485s that: 1) do not present inadmissibility or removability issues as those would likely require an I-601 or I-601A waiver;  or 2) do not present denials that would be based on an invalidated or soon to be invalidated I-140 or PERM labor certification. That said, there are a number of things an individual should know on how to handle a denied I-485, however, it is important to discuss these options with an attorney to best understand your options.

Maintain Nonimmigrant Status

Depending on the reasoning for the decision, it is possible for maintain your nonimmigrant status even if your I-485 was denied. For example, in the instance where USCIS fails to port the priority date from an older one and denies the I-485 stating that the priority date was not current when filing the I-485, it would not impact your nonimmigrant status. As long as there is not a denial that would result in an inadmissibility, such as fraud, you could continue to maintain your nonimmigrant status while you work to resolve the I-485 issues. Note, in instances where an individual has a denied I-485, and they have abandoned their nonimmigrant status, one option could be to consular process a new nonimmigrant visa and go for stamping. Even if you have utilized the I-485 EAD, you would not have to go through the H-1B lottery to get back into H-1B status. While it is entirely possible to maintain your nonimmigrant status post I-485 denial, it is important to review the denial with a qualified immigration lawyer  so you can make the best decision and ensure that you are not at any risk if you choose to do so.

Cure the Denial Reason and Refile the I-485

One option when you receive an I-485 denial is to cure the defect that led to the denial and refile the I-485. This can be a good option when the denial is easily fixable, such as a denial for failing to maintain status prior to filing. One can consider departing the US, maintaining nonimmigrant status, and then refile the I-485. Another reason this could work is if there was an abandonment of the I-485 where one travelled without advance parole and entered on a status that is not H or L. This option of curing the defect and refiling can work in a number of areas where the reason for denial is easily curable, but the discussion should be had with a qualification immigration lawyer on the best steps to take. Keep in mind, in order to refile the I-485, the priority date has to be current, so be sure to check the visa bulletin.

File a Motion to Reopen or Reconsider (I-290B)

For most denials of immigration benefits, including the I-485 adjustment of status, individuals have the option to file an I-290B for a motion to reopen or reconsider. An I-290B motion is a request to the USCIS office that issued the decision and a request for them to review the decision.  There are two types of I-290B motions that are part of the adjustment of status process, a motion to reopen and a motion to reconsider.

A motion to reopen is a request to the office to review its decision based on new facts that are available that were not available at the time of filing. USCIS specifically notes that the new facts must mean those that were not previously submitted in the original proceeding. These new facts must be supported by documentary evidence and be relevant to the issues raised on the motion. Additionally, USCIS notes that if the underlying application was denied due to abandonment, such as not responding timely to an RFE, you can use a motion to reopen if you can show the requested material was not material, the evidence was previously submitted, or the request was not properly mailed to the applicant. Unfortunately, with mail issues this can occur in the I-485 context and can be used for those that receive denials for not receiving the I-485 RFE.

The second type of motion is a motion to reconsider.  A motion to reconsider is a request to review a decision that is based on an incorrect application of law or policy. For example, in the earlier example where USCIS failed to properly port a priority date, a motion to reconsider would be the better route. Motions to reconsider must establish that the decision is legally incorrect based on the evidence in the record at the time of the decision. Individuals must cite to statutory, regulatory, precedent decisions, or policy that support their position.

There are two things to keep in mind with filing an I-290B. First, the filing of an I-290B alone does not toll unlawful presence, if applicable, nor does it reactivate the work and travel benefits associated with an I-485. Both of those thigns occur once the I-290B is granted and the case is reopened. Second, I-290B processing time can be lengthy, and is something that individuals need to take into consideration. Third, even if your case seems like a great one, USCIS has a history, especially at field offices, to not make great decisions on I-290Bs, as we will discuss shortly. Finally, I-290Bs are time sensitive and generally must be filed within 33 days of the date of the denial. While we recommend speaking to an immigration lawyer on this matter, you would need to get the denial in hand to provide a proper analysis of your case options.

Sue on the Denial of the I-485

This is the last recommendation for a reason. While there are many reasons to litigate denials of nonimmigrant visas, litigation on I-485s is a tricky endeavor and may be barred. In the Supreme Court case Patel v. Garland from 2022, the Supreme Court held, generally, that federal courts do not have jurisdiction to review denials of adjustment of status as it is a discretionary relief. In simple terms, courts cannot review factual issues related of adjustment of status denials. So why is litigation an option?

First, there are ways to distinguish most employment-based I-485s from the issues in Patel. In Patel, Mr. Patel applied for adjustment of status while in removal proceedings for entering without inspection, an immigration procedure that is vastly different from employment-based adjustment of status and invoilves completely different statutory language. He was denied adjustment status in removal proceedings because, among other things, he had made a false claim to citizenship, and Mr. Patel was ordered to be removed from the United States. Most employment-based I-485 denials  do not involve a false claim to citizenship nor do they involve removal proceedings, thus one can argue that most of these denials are vastly different than what was intended in Patel.

Additionally, the holding in Patel states specifically: “federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i).” (emphasis added). If the denial of an I-485, especially after an I-290B, involves arguably legal errors, not factual, a case can be made that Patel does not apply and that the court involved in the litigation should have jurisdiction to hear the case.  This does not mean that the government would not try to fight the case on Patel grounds, after all, they keep wanting to expand Patel, or that the court would not agree with the government. However, it does give people a fighting chance when litigation is necessary.

Litigation of an I-485 may not be the best option, but it may be a good option in unique cases. It is important that you talk to a qualified immigration lawyer that has experience in litigation, and understands the Patel challenges, before deciding to go through with suing on an I-485 denial.

Consular Process the Green Card

One final option is to consular process the green card. Assuming there is not an inadmissibility issue that would prevent this from happening, you can always seek to consular process the green card. As noted earlier, adjustment of status has additional requirements, such as maintaining status, that consular processing does not require. In order to do this, you would have to file an I-824 and get the I-140 sent over to the national visa center for processing. The consular processing of a green card will not a quick process over night, but can provide a good option if necessary.

Conclusion

For those facing an I-485 adjustment of status denial, it’s crucial to understand your options and seek professional guidance from an experienced immigration lawyer. While the path forward may seem uncertain, several avenues exist, including maintaining your nonimmigrant status, curing the denial reason and refiling, filing motions to reopen or reconsider, litigation, or pursuing consular processing. By carefully evaluating your specific circumstances and the reasons for denial, an immigration lawyer can help you navigate the complexities of the process and determine the most appropriate course of action. Remember, each case is unique, and a tailored approach is essential to maximize your chances of obtaining lawful permanent resident status in the United States.

Reddy Neumann Brown PC, located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.