USCIS must approve the petition

The US Citizenship and Immigration Services (USCIS) Policy Manual (PM) states that if a petitioner properly files a family-based petition “and demonstrates the eligibility requirements, then USCIS must approve the petition.” There is no discretionary analysis involved in adjudicating a family-based petition, and if all the requirements are met, USCIS cannot deny these petitions. (The PM provides instructions and guidance on various immigration laws, petitions, applications and procedures.)

There is also a memo from the 1980s instructing immigration officers that they should look for ways to approve petitions rather than trying to find ways to deny them.

Although USCIS is effectively under a mandatory duty to approve petitions, the petitioner and beneficiary must first demonstrate eligibility. And that’s where denials or requests for evidence happen. It is the job or duty of the petitioner to first demonstrate that “they meet eligibility requirements.” This includes showing the proper family relationship.

Many times, eligibility is not so clear. If a parent is petitioning their child, the birth certificate may have issues, such as not listing the parent, listing a date of marriage of the parent on the child’s birth certificate when the child was actually born out of wedlock, documenting the child’s care or support, etc. In the marriage context, the couple must demonstrate a bona fide (love) relationship with pictures and joint documents. Sometimes the documentation is insufficient. This could result in either a denial or a request for additional evidence, creating delays and anxieties.

That is why I recommend that if a person is filing for any immigration benefit, whether a petition or application, you should consult with an attorney who can help you properly gather the necessary documents and evidence, to make sure you “meet eligibility requirements,” such that USCIS must then approve your petition.

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