Our Mistake: Please pay $585

Sunday, February 28th, 2010
By: Jonathan MontagJ.D.

In the normal experiences of most of us, if someone makes a mistake and it costs someone else money, the person who makes the mistake reimburses the person who is out the money. Certainly, the victim does not have to pay more money to correct the mistake. Such is not the case with United States Citizenship and Immigration Services, USCIS. USCIS charges hefty fees for the services it provides. For example, the fee for an application to adjust status to that of a permanent resident, Form I-485, costs $930 and the mandatory fingerprints fee is an additional $80. It is not unusual for USCIS to deny a Form I-485 by mistake. If a mistake is made, an applicant is allowed to seek reopening or reconsideration by USCIS. One does this by filing a motion to reopen or a motion to reconsider, which costs $585. The regulations, at 8 CFR §103.5(a)(2), lays out the bases for reopening or reconsidering a denied case:

1. USCIS asked for additional documentation that was not necessary and the application was denied because the applicant did not send it;

2. USCIS asked for additional documentation and did not notice that it received the evidence on time;

3. USCIS sent a request for additional evidence to the wrong address;

4. USCIS denied the application based on an incorrect application of law or USCIS policy.

Note that all four of these reasons are the mistakes of USCIS.

An alien makes an investment of $1010 for an application for permanent residence. The alien is then denied adjustment of status because USCIS made a mistake. To rectify the mistake, another $585 must be paid.

This unique policy should change. Here is my proposal. To file a motion tor reopen or reconsider a fee of $585 is charged and placed into a trust account. If USCIS determines the case was denied based on its error, the case is reopened and the fee is returned – and an apology is sent. This would make USCIS consistent with the universal practice of correcting one’s mistakes and not charging more to fix one’s mistake.

In the interest of fairness, the San Diego USCIS office allows an applicant to request reopening or reconsideration based on USCIS error without paying a fee. The problem with that is that there is a deadline, usually 30 days, to file a motion to reopen and reconsider. If USCIS does not acknowledge the mistake and 30 days has passed, there is no option other than re-filing and paying the $1010 filing fees all over again. If you pay the $585 within the time limit, a separate appellate body within USCIS will independently determine whether USCIS made a mistake or not. A calculation thus has to be made – pay $585 for the independent review or pay nothing and hope the local office in San Diego acknowledges its mistake. I am no gambler, but it is rarely I would think it is worth it to pay the $585 – to pay $585 to save $1010 when there is a good shot, if the USCIS error is obvious, that you will have to pay nothing at all and USCIS will acknowledge its mistake and reopen the case. Of course, not all attorneys think this way – especially when they are not paying the $585; their client is.  February 28, 2010.



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