Ten Potential Serious Pitfalls for Applicants and How to Avoid Them
Speaking of navigating United States Immigration Services (USCIS), is really a misnomer. This is because, USCIS as a government agency, is very broad, involves other government agencies, and navigating it can be viewed from many different perspectives.
USCIS is only one of the seven services found on the fifth level of the organigram of U.S. Department of Homeland Security (DHS).
The other six services at the same level with USCIS, within the DHS are; U.S. Customs & Border Protection (CBP), U.S. Coast Guard (CG), Federal Emergency Management Agency (FEMA), Immigration and Customs Enforcement (ICE), U.S. Secret Service, and Transportation Security Administration (TSA). (For a more detailed breakdown of DHS and how USCIS fits within it, go to www.dhs.gov).
It is important to recognize that applications and petitions submitted to USCIS may end up involving other government agencies like, the Department of Justice
( Immigration Court and the Board of Immigration Appeals (BIA)), and the Department of Labor. For example, applications for Asylum and Withholding of Removal (Filed on Form I-589), may begin from a Service Center of USCIS, move down to an Asylum Office (part of USCIS), and may end before the Immigration Court and even proceed to the Board of Immigration Appeals. Both the Immigration Court and the BIA are under the Executive Office of Immigration Review (EOIR) of the Department of Justice (not the Department of Homeland Security). This example is presented here not to confuse but simply to provide a glimpse of how complex working with USCIS can be.
However, it may be helpful to capture some things that if done or not done, may result in very dire consequences for anyone traversing the USCIS landscape. Therefore, this Special Report attempts to present some simple, practical, and hopefully helpful strategies to keep in mind when dealing with USCIS. Of course, these ten possible pitfalls are not exhaustive of all the potential sources of serious problems that any unwary person treating with USCIS may encounter.
- Failure to notify USCIS of a change of Address
While your application or petition is pending, if you fail to notify USCIS when you change your address, and provide it with your new address, you may end up not receiving communication from USCIS about your pending application or petition. This may also have undesirable if not disastrous consequences, such as the denial of your application or petition. This may result in the initiation of removal proceedings against you, and ultimately to a removal order by an Immigration Judge. If you are ordered removed from the United States, even without your knowledge, and when you did not appear for your interview or hearings, you can be arrested anywhere and at any time. (See our Special Report: Protecting Yourself and Your Rights in Immigration Proceedings). If ordered removed, you may not be entitled to many other immigration reliefs thereafter without filing a motion to reopen your case. This can be very time-consuming as well as emotionally and financially challenging (See our Special Report: Obtaining Permanent Resident Status (“Green Card”) after a deportation or removal order)
There are various forms that can be used to notify USCIS of a change of address. Two of these are, Form AR-11 -Alien Change of Address with USCIS and Form EOIR 33 to be used with the Immigration Court. Both of these forms can easily be obtained online. In addition to using these forms, make sure you follow up and confirm that your address has been properly changed.
- Not Appearing for an interview or a hearing
It is never advisable to knowingly fail to appear for any USCIS scheduled interview or hearing. As stated above, this may result in a denial of your application and your removal from the United States.
Most immigration interviews can be postponed if and when a timely request is made, with a good reason for requesting the postponement. Even if you did not request a postponement before the date of the interview, but feel that you are not ready, go to the interview and request a postponement. However, before you do this make sure you have a good reason. It should not simply be because you are not personally ready. However, it could be that you need a lawyer to assist you in understanding certain aspects of your case. It may also be that you need additional time to obtain relevant documents to support your application. Generally, a reasonable request for additional time to get a lawyer or obtain additional documents will be granted.
Frankly, it is better to appear for your interview or hearing and be denied the relief or benefit you are seeking than not to appear at all. You can always file a motion to reconsider or appeal a denial. If properly done you may prevail. The appeal process can also buy you time to find another way of regularizing your immigration status.
- Failing to request return receipt or proof of submission of your application or petition
Unbelievably, sometimes USCIS will not receive mail that were properly sent through the US postal system. It is always a mystery why this happens. Whatever the case, you do not want to be a victim of this mishap. To avoid this, make sure you send all your mail to USCIS by certified mail with a request for a return receipt, and also obtain the necessary tracking information. Use USPS, Federal Express or any other means that can be tracked. This way, you will know when USCIS receives your submission. If you have your tracking information, and USCIS suggests that you did not file the application or did not respond to a request for evidence, you can use your tracking information to fight back.
However, even the return receipt and / or tracking information would not confirm unequivocally the content of what was actually sent to USCIS. Therefore, the method that we use in our office and have suggested to our clients is the following: Prepare a cover letter for your submission. Make a copy of the cover letter that lists all the documents that you are submitting. Attach a self-addressed and pre-stamped envelope to the extra copy of the cover letter. Put a sticker note on it saying “please stamp or sign and return this copy to me in the attached pre-stamped envelope. Thank you.” USCIS will invariably stamp or sign the copy of the cover letter listing your submission and return it to you in the self-addressed envelope. Keep this for your record. If necessary this would serve as incontrovertible evidence that the listed documents were indeed submitted. The stamping and returning of the cover letter to you would be considered an admission that the listed documents were in fact received. In a situation like this, even if your submission was misplaced, USCIS would be willing to reopen your case for no additional fee instead of denying it based on abandonment.
- Failing to keep copies of all petitions or application and documents Filed
Immigration proceedings are usually in phases. Much of the information and documents used when the initial application or petition was filed, would remain in the record throughout the proceedings. This means that you cannot change much of your personal and biographic information after having submitted the same to USCIS. When the information you submitted during one of your application for immigration benefits contradicts those you submitted in previous or subsequent applications, this may trigger questions from the USCIS. These questions may lead to allegations of misrepresentation or fraud. It can also be a moral character issue. Good moral character is a requirement for certain immigration benefits. A finding of fraud, misrepresentation and/or bad moral character could lead to the denial of your application.
Therefore, it is imperative that you keep copies of each and every document that you submit to USCIS. These would generally be needed. Take for example a foreign national who applies for Asylum and Withholding of Removal (Form I-589) and is approved. After one year of having been granted asylum, he or she would need to file an application for adjustment of status (Form I-485), before he or she can become a permanent resident of the United States. At that point, he or she will submit much of the same personal information that were submitted during his or her application for asylum. These may include, names and any other names used; date, place and country of birth; parents’ names and information; country of birth and residence; information about children and siblings, and so on. Five years after becoming a permanent resident, the same foreign national would be eligible to apply for citizenship (Form N-400), and may wish to do so. Again, at this stage, all the substantial personal information that had been previously provided in the other applications, would have to be provided again.
Recently, some USCIS Officers, in naturalization interviews, have been questioning applicants about their asylum applications. These officers go as far as asking questions about political affiliations, well-founded fear of persecution and persecution (including date, time, places and reasons for arrests and detentions). As a matter of law, this incorrect. A USCIS officer is not empowered to re-adjudicate an asylum application that had been granted.
On the other hand, USCIS reasonably expect applicants to know some basic personal information regarding their previous applications.
Therefore, you need to be ready to point out to a USCIS officers when unlawful or unreasonable questions or information are being requested. Our office, Law Offices of Fogam & Associates, LLC, has represented clients in citizenship applications where USCIS Officers employed erroneous standards to deny applications. We have successfully had denial decisions reversed.
- Providing false statements, misrepresenting information or failure to disclose pertinent information
Providing false statements, misrepresenting material facts or failing to disclose relevant facts, can result in a denial of your application and in some cases, can make it impossible for you to ever obtain immigration benefits. Some misrepresentations can be difficult to overcome. However, in many cases you may be able to show that the misrepresentation or failure to disclose was innocent. In other words, that you did not intend to misrepresent. To do this, you may need to articulate your position carefully with affidavits and support it with case law. A good lawyer can help you with this.
One of the ways to avoid this problem is to carefully review all your immigration records before submitting any new application or petition. If you are represented by a lawyer, give to your lawyer all your background information. In our office, we review our clients’ background information very carefully before submitting any new applications.
- Submitting Fraudulent or unauthenticated documents
It goes without saying that any documents or information submitted to USCIS that turns out to be fraudulent, can have dire consequences. Knowingly submitting fraudulent documents can be extremely dangerous. First, it would be very difficult to overcome this type of fraud. Secondly, it could lead to criminal charges. The more insidious type of submitting fraudulent document or information occurs when applicants use documents that have not been properly verified or authenticated. These may be fake documents without the knowledge of the applicant. It is common for applicants and petitioners to submit birth certificates, marriage certificates and divorce certificates from abroad that turn out to be bogus. Although, sometimes, this type of fraudulent submission can be cured, it could be very costly and time consuming.
To avoid this pitfall, always verify the source of your documents and authenticate them. If you do not know how to do this, ask your lawyer, especially if you doubt any documents. In our office, we either reject any document that appears fake or fraudulent or authenticate it before submission.
- Failure to properly prepare for your interview or hearing
No matter how minimal the issue or matter is, when it involves USCIS, take it seriously. This is because a small misstep can spill into another part of your case and cause trouble. Also, minor discrepancies may engender excessive scrutiny of your application or petition. This may lead to a USCIS request for evidence, which can be costly and time consuming for you.
Therefore, whenever you have an interview, or a hearing, make sure you prepare very well for it. Your preparation should be both substantive and psychological.
In our office, we meet with our clients multiple times, to prepare for any interview or hearing, no matter how small. We also understand that the psychological preparation of our clients is as important as reviewing their applications and the other documents related thereto.
- Ignoring minor crimes or even traffic violations.
Although minor crimes or petty offenses may not trigger deportation or removal proceedings, a number of them may do so. Serious traffic violations like driving under the influence of alcohol or drugs, driving with a suspended license or without a license, will almost always affect your application with USCIS. Even cumulative minor traffic violations or traffic tickets that have not been paid, can affect your application.
To avoid these type of problems, “clean your record” as best as you can. Cleaning your record does not mean expungement. Contrary to what many immigration applicants think, it is not advisable to expunge your arrests and criminal records. From an immigration perspective, expunging your criminal record is not helpful. When you expunge your record you basically destroy the information without removing the criminal conviction. The information surrounding your criminal charge, conviction or sentencing may be very helpful in the hands of a good immigration lawyer, to convince USCIS that you are not a seasoned criminal, or that the circumstances of your crime were substantially innocuous. However, if the record has been expunged, your lawyer will not have the benefit of using it to craft your argument.
Cleaning your record means, staying away from any criminal acts, traffic violations and other infractions. It also means, if you have any accumulated traffic tickets, pay them off. It further means that if you had had any criminal convictions, wait as long as you can after the conviction, before filing any immigration applications. There are also some post-conviction remedies that your lawyer may consider.
The Law Offices of Fogam & Associates, has both an immigration department, and a criminal and serious traffic violations department. Therefore, when relevant and necessary, we carefully analyze the immigration consequences of our clients’ criminal or serious traffic violation charges or convictions.
- Including persons in your application as family members when you cannot proof the relationship
This can also be viewed as fraud. However, sometimes, foreign nationals, when completing USCIS forms, interpret certain information based on their cultural understanding. For example, child or children in some cultures would be any child or children who have lived with you from birth. In those cultures, no adoption papers are required for the child to be viewed by members of that community as your child. However, without a valid birth certificate or adoption papers, USCIS would not consider a “child” your child.
Therefore when filling out USCIS forms, make sure you understand the requested information. Most USCIS forms are accompanied by instructions that can be downloaded at www.uscis.gov. Unfortunately, sometimes, even the instructions are nebulous. You may need the assistance of someone who has experience in preparing the particular form or application.
At the Law Offices of Fogam & Associates, we assist our clients in completing their applications, and we review them carefully.
- Failing to see the unique aspects of your case and assuming that because the case of someone you know was adjudicated in a certain way yours will also be similarly decided.
It is important to note that although there are guidelines for USCIS adjudicators to follow, there is also a case by case review. Furthermore, USCIS officers can exercise certain discretion. This means that a USCIS officer may view a particular aspect of your case differently from how he or she will view the same aspect in another case. This may be based on many different factors such as, age, length of stay in the country, prior immigration history, family ties, and level of education, language abilities, and many more. Therefore, it is always important to have your lawyer review every aspect of your case carefully with you. Your lawyer may be able to use a stronger part of your application to counteract a weaker part.
Generally, to avoid any mishaps in dealing with USCIS, get a good lawyer or someone knowledgeable in immigration matters to assist you. Do this even if the situation is so bad that you cannot see what a lawyer would do for you. You may be surprised. In our office we believe that extraordinary results require extraordinary actions. Yes, sometimes extraordinary actions can be taken.
Unfortunately, because immigration issues are discussed so often by so many, some people with very superficial knowledge of this area, hold themselves out as more knowledgeable than they really are. Many of these may not even be lawyers. As you proceed with your immigration matter, you need to be careful that you are not misguided.
The immigration practice department at our office, Law Offices of Fogam & Associates, analyzes each of our clients’ immigration situation very carefully to reveal any problems when and where they exist, and then deals with them in the best possible way.