Opinion

Don’t ‘abandon’ your case through inaction

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

December 18, 2022 | 12:00am

One of the most heartbreaking, and easily preventable, denials is through “abandonment.” If your case is denied due to abandonment, there are strict time limits and grounds to have the case reopened. Otherwise, the petition or application is considered permanently denied, and the person must start over with a new filing.

What is abandonment? What are the grounds to have a case reopened if it is denied for abandonment? How can a person avoid a denial based on abandonment?

Many people have consulted with me over the years, all with similar fact patterns. Typically, a petitioner files the petition, but it can sometimes take USCIS (US Citizenship and Immigration Services) over 10 years before they even begin processing the case. Years after the petition is filed, USCIS may send out a request for evidence (RFE) asking for additional documents or information in order to establish the person’s eligibility. Sometimes USCIS could request something as simple as a birth certificate, marriage contract or even photos. If a woman has two different names (such as maiden and married), USCIS may request an explanation or proof they are one and the same person, which might easily be accomplished by submitting the person’s birth certificate and marriage contract. Many items requested in these RFEs are really simple, straightforward and easily obtainable.

Unfortunately, for one reason or another, the petitioner never receives the RFE. In many cases, this is because they have moved but never notified USCIS of their new address. Therefore, the RFE may have been sent to their old address and perhaps even “returned to sender” as undeliverable.

RFEs have strict deadlines for responding, which is ordinarily 87 days. If a petitioner fails to respond to an RFE or a notice of intent to deny within the allotted period, the petition is considered abandoned. As the regulations state:

“Failure to submit evidence or respond to a notice of intent to deny. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the benefit request may be summarily denied.”

If a case is denied for abandonment, the person cannot file an appeal. Instead, they ordinarily must file a motion to reopen within 30 days of the denial due to abandonment, and there are only three specific grounds the person must demonstrate in order to have the case reopened and restored:

“(i)The requested evidence was not material to the issue of eligibility;

(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(iii) The request for additional information or appearance was sent to an address other than that on the application, petition or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service’s request was sent, and the request did not go to the new address.”

In other words, the person would have to demonstrate the evidence requested did not have a bearing on their eligibility, they already submitted the evidence or the RFE was sent to the wrong address. Unless you fit into one of these three grounds, USCIS could summarily deny the motion, even if you now submit the requested evidence, such as the birth certificate, marriage contract, photo, etc. If the case cannot be reopened, a new petition or application would have to be filed, and the previous priority date would be lost.

What can you do to avoid a denial due to abandonment?

Make sure that when you file a petition or application, you have filled it out correctly and included all the required or necessary evidence demonstrating eligibility. In other words, make sure your filing is complete, so there’s no need for USCIS to issue an RFE.

Monitor the processing times of petitions and applications on USCIS’s website to determine if your case is past normal processing times or within normal processing times. If it is past normal processing times and you have not received any further notices or approvals from USCIS, this should raise red flags.

If you move after having filed a petition or application, make sure to notify USCIS directly of the address change. Submitting a postcard to the post office does not operate as a notice to USCIS for them to send it to your new address. And of course, keep the documentation proving you notified USCIS of your new address.

If your case was denied due to abandonment, you may want to consult with an attorney who can evaluate your case and determine if you possibly have grounds to have the case reopened. While I am not guaranteeing success or results, my office has been able to have abandoned cases reopened by proving the evidence requested was either not material, was already in USCIS’s files or they were aware of the new address.

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