The law is a codification of what is right and fair. It may not seem that way sometimes, but that is what it is and should be.
Part of being a lawyer is keeping sight of this basic truth. As an immigration attorney, I deal with U.S. government agencies on a daily basis. Sometimes my interactions with agencies are adversarial, such as when Immigration and Customs Enforcement is trying to deport my client because of lack of government permission to be present in this country, and I am trying to point out exceptions in the law that allow my client to stay and to become a lawful resident (or to prove that my client is already a citizen and therefore not deportable). Other times my interactions are cordial, in that I am applying for a benefit that my client qualifies for, and my job is to know what the qualifications for the benefit are (all of them) and to clearly demonstrate that my client possesses these qualifications. The government agency’s staffers’ job is to verify that my client does indeed qualify for the benefit sought and, once verified, approve that application in a timely manner. The benefit, after all, is one that the United States Congress has pronounced is a desirable result, such as family reunification or providing foreign workers for U.S. businesses that cannot otherwise find qualified U.S. workers.
Not infrequently, applicants for immigration benefits (especially those not represented by an immigration attorney) make mistakes in their forms or fail to submit all necessary documents, despite being as diligent as possible in following the instructions provided by U.S. Citizenship and Immigration Services (“USCIS”) or other U.S. immigration agencies. Even experienced immigration attorneys will occasionally make mistakes, being only human. And, sometimes (or a lot of times, depending on who you talk to) USCIS makes mistakes, being only run by humans. That’s when an I-290B Motion to Reopen or Motion to Reconsider comes in.
The I-290B Motion to Reopen and/or Reconsider codifies what should be common-sense fairness. When an applicant believes that USCIS has made a mistake there must be some way to communicate this to USCIS and hold USCIS accountable for its mistakes.
This is what happened in one of my change of status cases, where my client entered the country on a B1/B2 tourist visa to visit with family and sightsee, and then decided she wanted to continue her education here. Rather than going home and applying for an F-1 student visa she opted, as permitted by law, to apply for a change of nonimmigrant status. As her immigration attorney, I helped her navigate this change of status. We researched schools for her in Philadelphia, and she chose one that fit her budget and career goals. She applied for attendance and was accepted by the school, paid her first semester’s tuition fees, and was issued an I-20 by the school. She had to prove she had the financial means to pay her tuition fees and cover her living costs here in the United States, and a good friend of the family generously agreed to be her financial sponsor.
My client’s situation was one that was explicitly contemplated and approved of by immigration law, and it was just a matter of proving the relevant factors: nonimmigrant intent upon admission; acceptance at a SEVIS-approved school and issuance of an I-20; and financial ability to pay for school and living costs. We submitted her application for change of status along with all needed documents. USCIS received her application but somehow lost most of the accompanying documentation. In fact, USCIS informed me that although it had received my cover letter, which listed all enclosed documents, the documents themselves were not received.
Now, let me pause for a moment to reflect. USCIS was telling me that I had submitted a cover letter with no enclosed documents. For an experienced immigration attorney, that’s ridiculous. No lawyer would send just a cover letter and not include the 80+ pages of documents that the letter references. I can understand forgetting a particular document among several documents, especially in a voluminous submission, but to just send a cover letter – what experienced and reputable attorney, or what applicant for that matter, would do that!?
In this particular case, USCIS misplaced voluminous document submissions three separate times. In the same case. Can you image how infuriating it was for me to receive the second and third notice that USCIS had not received documents that I took such care to deliver to it — especially after being told that the first submission had documents that went missing? I could prove that I mailed a substantial packet of documents to USCIS in the matter, and I did so, sending along copies of the prior submissions to prove timely and complete submission of required information.
I notified USCIS of the fact that the relevant facts had been delivered, and I delivered copies. The application was then still denied for failure to submit required evidence. I wrote a strongly worded letter basically telling USCIS you can’t deny this application for losing documents I already submitted to you! I also complained to my bar association and asked for liaison assistance. The case was reopened by Service motion and then again denied, again citing failure to submit documents I had by this time submitted twice. It was like the Service never read my letter in which I had so carefully proven that my client had met all her obligations, and again delivered the relevant evidence. I wrote another strongly worded letter, sent another full copy of all prior submissions (several hundred pages by now), which got no response. I also filed an I-290B Motion to Reopen and/or Reconsider, the formal protocol for complaints (which carries a hefty filing fee). When no response was forthcoming within 90 days, however, I sought assistance from the USCIS Ombudsman’s office, reciting the litany of lost documents and resubmissions. They saw the error and the Motion was ultimately granted, and fairness in the case was preserved, although it took one and a half years rather than the two to three months it normally does for an application like this.
The moral of this story: don’t forget that the law should result in what is right and fair. Oh, and be a pain in the ass if that’s what’s needed to get things done.
The approval was sweet, but what would really be the icing on the cake is if USCIS refunds our filing fee. I am not holding my breath.