Blog

Our July 2024 Client of the Month is José GG.  José is a minister and sought to get his residence through adjustment of status but due to multiple USCIS delays and errors was wrongly denied.  Then, we got involved.

Once, at a training session on litigating immigration cases in federal court, one of the best immigration litigators in the country, Marc Van Der Hout, was lecturing and someone asked him “how do you know when to litigate?”  Marc answered, in beautiful simplicity, “when something is wrong.”  That advice has always guided our approach at Benach Collopy to litigation.  When the agency is wrong, look to federal courts for redress.

And there was something very wrong with the USCIS handling of José’s case.  José filed his application for adjustment of status in March 2017.  He included all required forms, including an I-693 medical exam.  However, the USCIS requested another I-693 medical examination just two months later.  José did it again and submitted a new medical exam in September 2017.  After doing nothing with his case for over four years, the USCIS sent a request for a THIRD medical examination in November 2021.  But José never received that notice.  He only learned of it when the USCIS denied his green card in May 2022.  José immediately went a did a new medical exam and wrote a letter to USCIS explaining that he did not receive the November 2021 request for evidence.  The USCIS did not respond.

While all this was going on, the USCIS tried to figure out how long a medical exam should be valid for.  During the five years that José’s application remained pending from March 2017 to May 2022, USCIS issued at least two directives about the validity of the medical exam.  Had the USCIS decided his case during that period, his September 2017 medical exam could have been used.  As an aside, current USCIS policy is that a properly submitted medical exam does not expire for the entire duration of the pendency of the adjustment of status application.

José came to see us in July 2023.  We sent a request to the USCIS asking them to reopen the case on their own motion.  After all, they had everything they needed to approve the case as José had sent in a medical exam in June 2022.  The USCIS told us “No.”  We wrote to the ombudsman’s office.  This office is supposed to be a way for people to resolve what should be simple and clerical issues.  The USCIS told the ombudsman “No.”  

So, we sued them, saying that their refusal to accept the medical exam from June 2022 was arbitrary and capricious.  We detailed the long history of José’s efforts to give USCIS what it needed in the five years that his application for residence.  We reasoned that, if a federal judge saw this nonsense, she would immediately come down hard on the USCIS.  The US attorney apparently thought so too.  He sent us an email saying that he was hoping to work the case out.  Two days later, we got an approval notice of José’s application for residence.

We are often asked “can’t you just call someone and explain?”  The answer is no.  The USCIS does not provide effective mechanism to resolve dumb issues like this.  But the Administrative Procedures Act does and allows an individual to sue where an agency is acting arbitrarily and capriciously.  That is how we “just call someone,” by filing a complaint in federal court.  Then, they listen.