New Lawsuit Challenges Green Card Policy Risking Family Separation

A Notice of Intent to Deny can show up in a family's mailbox with no warning shot first. Under a USCIS policy update issued in May 2026 (per https://www.gastonlawfirm.com/blogs/2026/june/uscis-is-changing-how-it-reviews-adjustment-of-s/), officers adjudicating Form I-485 adjustment-of-status applications no longer have to send a Request for Evidence before denying a case — they can move straight to a NOID or a denial on the record as it stands. For a husband waiting on status through his U.S. citizen wife, or a parent whose child is aging out while a petition sits in backlog, that change turns a slow bureaucratic process into one with almost no margin for error. The American Immigration Lawyers Association has sued over this policy and a related one, arguing both put green card applicants at risk of family separation (per https://www.aila.org/about/press/new-lawsuit-challenges-administration-policies-threatening-green-card-applicants-with-family-separation). The lawsuit is real, but it doesn't pause adjudication of your pending case.

As of May 2026, USCIS may deny Form I-485 green card applications without issuing a Request for Evidence first, per USCIS Policy Manual Volume 7, Part A, Chapter 10. AILA has sued over this and a related policy, citing family-separation risk. The lawsuit does not pause individual case adjudication, so deadlines still apply.

The Hard Truth

Filing the lawsuit does not pause adjudication of your Form I-485. AILA's complaint challenges the policy in federal court under the preliminary-injunction standard of Federal Rule of Civil Procedure 65(b), but a ruling, if one comes, could take months and may not reach a case already decided. If you have a pending application, assume it will be adjudicated under the current policy, not the one that existed before May 2026. The burden of proof in adjustment-of-status cases sits with the applicant under the preponderance-of-the-evidence standard from Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) — USCIS no longer has to invite you to meet that burden before deciding you haven't.

What Happens If You Wait

Miss the response window on a Notice of Intent to Deny — 30 days from the date on the notice, under 8 C.F.R. § 103.2(b)(8) — and the application is typically denied on the existing record, with no second chance to supplement it. For an applicant with no independent lawful status, a denied I-485 can lead to a Notice to Appear and the start of removal proceedings before the immigration court covering your address, such as the San Francisco Immigration Court. A spouse or child listed as a derivative beneficiary on the same petition is exposed too: if the principal applicant's case is denied, the derivative's basis for adjustment usually goes with it. Delay doesn't help you here. Since USCIS no longer has to pause for a Request for Evidence, these cases can move through the system faster than before.

Step-by-Step Process

Confirm exactly what you received — RFE, NOID, or denial — and calendar the deadline the same day you open the notice.
Pull the full record: the I-130 or I-140 approval notice, the I-485 receipt, any prior RFE responses, biometrics results, and Form I-693 medical exam results.
Build the rebuttal to meet the Chawathe preponderance-of-the-evidence standard with primary documents — joint financial records, sworn statements, employment verification — not a cover letter alone.
File within the window: 30 days for a NOID, or whatever period is printed on an RFE, under 8 C.F.R. § 103.2(b)(8).
If the case is denied, choose between a motion to reopen or reconsider (8 C.F.R. § 103.5, 30-day deadline) and an appeal to the Administrative Appeals Office (8 C.F.R. § 103.3, 30 days plus 3 if mailed) — the two serve different purposes and picking the wrong one can waste the window. See our adjustment-of-status overview and motion-to-reopen services for how each works.
If a Notice to Appear issues, start preparing for removal defense before the Executive Office for Immigration Review separately from the USCIS filing — the two tracks run on different clocks.
Track the AILA litigation for any injunction, but file every USCIS deadline as if the policy stands, because right now it does.

A Real-World Example

Consider a composite case: a U.S. citizen petitions for her husband, who has been in the country without status for six years and filed Form I-485 concurrently with the I-130. Before May 2026, if the marriage evidence looked thin to the officer, USCIS typically issued an RFE asking for more joint financial records or affidavits. Under the current policy, the officer instead issues a Notice of Intent to Deny citing insufficient evidence of a bona fide marriage, with 30 days to respond. The couple gathers two more years of joint tax returns, a lease, and a sworn statement from the applicant's sister attesting to cohabitation, and the rebuttal package is filed nine days before the deadline. The file then returns to the adjudication queue at the USCIS National Benefits Center in Lee's Summit, Missouri, where an officer reviews the supplemented record and issues a new decision. The outcome of that particular case matters less than the timeline behind it. The couple had 30 days to gather new evidence and file a rebuttal, and USCIS would not have issued a second NOID if that first response had fallen short.

William J. Vasquez has represented clients in adjustment-of-status matters, including cases involving Requests for Evidence, Notices of Intent to Deny, and motions to reopen filed after a denial, with direct representation before USCIS field offices and the Board of Immigration Appeals. Read more about his background on his attorney bio page. This page reflects his reading of the current USCIS policy as of the date below — it describes a process, not a prediction about how any individual case will be decided.

Key Terms Explained

RFE (Request for Evidence): A notice asking an applicant to submit specific additional documents before USCIS decides the case; governed by 8 C.F.R. § 103.2(b)(8).

NOID (Notice of Intent to Deny): A notice stating USCIS intends to deny the application unless the applicant rebuts specific derogatory information or evidentiary gaps within the stated window, typically 30 days.

Form I-485: The Application to Register Permanent Residence or Adjust Status, filed under INA § 245(a), 8 U.S.C. § 1255(a).

Adjustment of Status: The process by which an eligible noncitizen already in the United States applies for lawful permanent residence without leaving the country.

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010): The controlling decision establishing that applicants carry the burden of proving eligibility by a preponderance of the evidence.

Motion to Reopen/Reconsider: A request asking USCIS to revisit a denial based on new facts (reopen) or a legal/factual error in the original decision (reconsider), filed under 8 C.F.R. § 103.5.

AAO (Administrative Appeals Office): The USCIS body that hears appeals of certain denied applications and petitions, under 8 C.F.R. § 103.3.

Preliminary Injunction: A court order pausing a government action while litigation proceeds, governed by Federal Rule of Civil Procedure 65(b).

Notice to Appear (NTA): The charging document that initiates removal proceedings before an immigration court.

Frequently Asked Questions

Q: Does the AILA lawsuit stop USCIS from denying my green card application right now? A: No. The lawsuit challenges the policy in federal court, but unless and until a judge issues an injunction under Federal Rule of Civil Procedure 65(b), USCIS keeps adjudicating individual I-485 applications under the current rules (per https://www.aila.org/about/press/new-lawsuit-challenges-administration-policies-threatening-green-card-applicants-with-family-separation).

Q: How much does it cost to respond to a Notice of Intent to Deny or file a motion to reopen? A: Cost depends on the complexity of the record and whether new evidence — expert affidavits, certified translations, country-condition documentation — is needed; ask for a written estimate at the consultation before any filing begins.

Q: How long does a motion to reopen or AAO appeal take once filed? A: Processing time depends on the specific USCIS office or the AAO's current caseload — check the agency's own case processing times tool at uscis.gov/processing-times for the form and office handling your case, since USCIS does not publish a fixed turnaround for these filings.

Q: What happens to my spouse or children if my I-485 is denied? A: If they were included as derivative beneficiaries on your petition, their basis for adjustment is usually tied to yours, so a denial typically requires a separate strategy for each dependent — raise this at the same consultation rather than after a second denial.

Q: Does a pending or approved I-130 petition protect my I-485 from a NOID or denial? A: No. The officer adjudicating the I-485 is evaluating that application's own evidentiary record, including the bona fides of the underlying relationship, separately from whatever stage the I-130 is at.

Clients working through adjustment-of-status denials and appeals describe the firm's communication and document preparation in reviews on Google and Avvo. We don't publish outcome statistics for immigration matters — ask any firm that does how that figure was calculated and what it actually measures, since an adjustment-of-status case turns on the specific record in front of a specific officer, not a historical average.

A Notice of Intent to Deny with a 30-day clock isn't the moment to start researching what Matter of Chawathe means. If you've received an RFE, a NOID, or a denial tied to the May 2026 policy change, the next step is reviewing your actual file: the petition, the evidence already submitted, and what's still missing. A general explanation of the policy won't meet that deadline for you.

Schedule a consultation to go through your Form I-485 notice, deadline, and evidentiary record with our team before you file a response or a motion. Request an appointment through our adjustment-of-status intake page and bring the notice itself, your I-130 or I-140 approval, and every RFE response already filed.

/practice-areas/adjustment-of-status
/practice-areas/removal-defense
/services/motions-to-reopen
/attorneys/william-j-vasquez
/contact/adjustment-of-status