Receiving a Notice of Intent to Deny your visa application can be discouraging but it may not be the end of your journey to immigrate to the United States legally. In some cases, the United States Citizenship and Immigration Service (USCIS) may have sent a notice to deny based on an outdated or out of use regulation. However, retaining a lawyer who specializes in immigration matters may set you back on the path to legal status.
USCIS has issued notices of their intent to deny I-360 visa applications for religious workers that not only conflict with federal court rulings but also run counter to their own stated policy positions. For example, the regulation at 8 C.F.R. 204.5(m)(4) and (11) requires that immigrants “[perform] full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition.”
However, a federal court found in U.S. Court of Appeals in Shalom Pentecostal Church v. Acting Secretary DHS, 783 F.3d 156 (3rd Cir. 2015) that this regulation was inconsistent with the statute. Further, USCIS’s own policy memos direct its offices to adopt the Shalom Pentecostal decision nationally. In a July 5, 2015 policy memorandum USCIS stated, “To promote consistent adjudications and a nationally uniform immigration policy, USCIS acquiesces to the finding that those regulations are ultra vires nationwide, and will no longer apply the lawful status requirements. In addition, USCIS will amend the regulations at 8 CFR 204.5(m)(4) and (11) to reflect this finding by removing the lawful status requirements. This Policy Memo instructs USCIS employees to apply the Shalom Pentecostal decision nationwide pending a regulation change. Accordingly, USCIS will no longer require that the qualifying religious work experience for the 2-year period preceding submission of a Form I-360 special immigrant religious worker petition be acquired in lawful immigration status if gained in the United States.”
Unfortunately, in some of their notices to deny I-360 visas for religious workers, USCIS continues to cite the outdated regulation requiring workers to complete two years of full-time work while in lawful immigration status. This is despite the fact that the requirement that the two years of religious work be done lawfully has been struck down by the Appeals Court and is no longer used by their office.
An applicant might despair at receiving a Notice of Intent to Deny from USCIS. However, retaining an attorney is likely the best way to assert your rights and hold USCIS to their own standards and policies. If you are looking to retain an attorney to fight for you in your immigration journey please do not hesitate to contact the office of Attorney Louis Haskell in Lowell, Massachusetts at 978 459 8359.