What if USCIS makes a big, big mistake?
Hi. I’m Jim Hacking, immigration lawyer practicing law throughout the United States at our offices in St. Louis, Missouri and San Diego, California. In this video, we’re talking about green cards. We’re talking about citizenship. We’re talking about H-1Bs. We’re talking about any case handled by USCIS and we’re talking about those scenarios where USCIS has made a clear legal mistake. Their denial notice is factually and legally invalid, is just plain wrong. They have cited the wrong statutes, they have used the wrong standard and the question is, what do we do in that scenario? And so it depends what you’re applying for. Different cases have different remedies. For instance, naturalization, you can apply for an administrative appeal, but that can take up to a year. You do that by filing an N-336, asking for an administrative hearing on your denied N-400.
But for the most part, you’re going to have to apply on an appeal either to the BIA or the administrative appeals office and that can take a really long time. One of the new things that we’ve been doing is we’ve been filing those administrative appeals, the I-290B, motion to reopen or reconsider, but we’ve also filed a motion with the local field office, asking them to reopen the case sua sponte. If something’s very clear, let’s say they said the wrong name or they put in the wrong legal standard or it’s something that anyone reading it with half a brain would know that this denial was improper, then we like to send a copy of it to the local field office and give them the opportunity to fix it. Now we’ll still file the administrative appeal because you have to, you don’t want to blow that deadline, but we’ll also ask the local field office director to sua sponte, which means on their own motion that we’ll ask them to reopen and re-look at it. Maybe even before they send it off to the administrative appeals office.
And sometimes that works. Sometimes they will reverse themselves if the mistake is sort of clear error. That’s a legal term that judges use, clear air is like, “Oh my God, you morons. It’s so obvious the mistake that you made.” That is an option. We’ve tried it and it’s worked with some success. We’re going to try it more now, I think. I like this as an approach because you’re preserving your legal rights by filing the official motion to reopen, but you’re also giving them a sideways chance to fix their own mistake and that’s always a good thing. Anytime you can get people to look at a mistake, the more people you have looking at it, the better. It’s not going to work in every case and if it’s a close call or it’s something discretionary, I wouldn’t try this. But if it’s something that’s a big, big mistake by USCIS’ part, I think it’s worthwhile to make this motion sua sponte with the local field office, asking them to reopen and to look at it and to fix their damn mistake.
If you have questions about this or if they’ve made a mistake on your case, don’t blow that deadline. You only usually have 30 days to appeal. Don’t wait a year and a half and then call our firm and ask us, “Oh, can we reopen?” If you have questions, give us a call 314-961-8200. You can email us at [email protected] You can email us at [email protected] I think I just said that. You can find us on our YouTube channel. We add new videos every single day and we also have our Facebook group, Immigrant Home. We’d love to see you in there. And then on Tuesdays and Thursdays, usually at noon central time, we have our Immigration Answers Show where I get on and answer as many immigration questions as I can. We hope to see you there and let us know if you need anything. Thanks a lot. Have a great day.