What to do if your green card was issued in error?

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In this video, attorney Jacob Sapochnick discusses an interesting situation that can occur when the U.S. Citizenship and Immigration Services (USCIS) issues a green card by mistake.

Learn what can happen in this situation and the steps you need to take to inform USCIS of the mistake, so that it does not cause complications for you down the road.

Overview

You might be wondering, how is it possible for a green card to be issued by the U.S. Citizenship and Immigration Services (USCIS) by mistake? Although this is not a common occurrence, there are situations where an administrative or clerical error, can lead USCIS to issue a green card before an applicant is eligible to receive one, or before a green card is available.

It is important for you to understand that receiving a green card in error can have serious immigration consequences. Those who fail to take action to correct or remedy the mistake within a reasonable time can lose their ability to apply for U.S. Citizenship or even jeopardize their green card status.

How Does This Occur?

Green Card Issued Before a Priority Date is Current

Under U.S. immigration law, except for immediate relatives of U.S. Citizens, there are annual numerical limits on the number of green cards that can be issued to green card applicants. This applies to both employment-based and family-sponsored applicants. Due to these numerical limitations, the majority of green card applicants must wait their place in line until a green card is available to them. Only once an applicant has reached the front of the line (their priority date becomes current for final action on the Visa Bulletin), can they be eligible to receive a green card.

To know when a priority date is current for final action, applicants must regularly review the Department of State’s Visa Bulletin. A green card applicant’s priority date can be located on the I-130 or I-140 Form I-797 Notice of Action. The priority date generally falls on the date when the I-130 or I-140 immigrant petition was filed with USCIS. This date will determine your place in line in the green card queue.

Once you have located this date, you will need to review the “Final Action Dates” chart on the Visa Bulletin. If your priority date is earlier than the final action cutoff date listed on the chart, it means that your priority date is current, and a green card is available to you. If your priority date is later than the final action date listed for your category, that means a green card is not yet available for you.

This is where USCIS sometimes makes a clerical or administrative error. In some cases, USCIS may issue a green card by mistake, even though the green card is not yet available, and a priority date is not yet current for final action on the Visa Bulletin. This commonly occurs where there has been a “retrogression” of the visa category on the Visa Bulletin.

When a green card is issued by mistake, USCIS typically becomes aware of the issue after the green card has already been mailed to the applicant. Thereafter, USCIS will issue a Notice of Intent to Rescind the green card, known as a NOIR. The NOIR will generally notify the applicant that the green card is being rescinded because the priority date is not current for final action. In most cases, USCIS will also notify the individual that their application will be put back into a “pending” status until a green card becomes available.

If the case is not placed into a “pending” status, it is bad news for the applicant. In such a case, you must immediately contact an immigration attorney to eliminate the risk of being placed in removal proceedings. Receiving a NOIR is a serious issue that should be addressed as soon as possible.

In more rare cases, USCIS is completely unaware of the error and does not learn about it until the green card holder applies for a renewal of their permanent resident status, or when applying for U.S. Citizenship. This is not a situation you want to find yourself in. You must promptly notify USCIS of such errors as soon as you become aware of them. When in doubt always consult with an experienced immigration attorney to evaluate the circumstances of your green card issuance.  Otherwise, it could lead USCIS to rescind your green card, as well as your potential removal from the United States if you never had lawful status in the first place, and it could make you ineligible for U.S. Citizenship for failing to demonstrate good moral character.

Issuance of a 10-Year Green Card By Mistake

Another common way that this can occur is when a “conditional” green card applicant mistakenly receives a 10-year green card, instead of a 2-year “conditional” green card.

Certain classes of immigrants such as spouses of U.S. Citizens married for less than 2 years, and EB-5 immigrant investors, receive a 2-year conditional green card as a fraud prevention mechanism to ensure that a bona fide marriage or EB-5 investment exists. For these individuals, permanent residence is made “conditional” on proving the legitimacy of the marriage, or EB-5 investment as applicable. Such individuals are NOT eligible for a 10-year green card from the get-go.

Prior to the expiration of the “conditional” 2-year green card, the applicant is required to file the removal of conditions application to obtain the 10-year green card. During this application process, individuals will demonstrate that they have satisfied the conditions and should receive the 10-year green card.

Conditional permanent residents who mistakenly receive a 10-year green card instead of the expected 2-year green card, can remedy this error by filing Form I-90 with USCIS and sending the green card back. This form is commonly used to apply for a replacement or renewal of a green card, but it is also used to correct errors on an issued green card, including incorrect duration. You may also wish to make an appointment with USCIS to bring the issue to their attention.

Failing to correct this mistake can lead to very serious immigration consequences. Your “conditional” green card could be revoked, your future removal of conditions application denied, as well as potential removal from the United States if you remain without lawful status.

Additionally, if the mistake is discovered by USCIS during an application for U.S. Citizenship, it could be denied or carry serious complications in the not-too-distant future.

IMPORTANT TIP: Always promptly notify USCIS of an error in green card issuance. Do not wait to rectify the problem months, or even years down the line.

How Can You Avoid This Situation?

An easy way to avoid being in a situation like this is to always check on the status of your application. If you receive a green card approval, verify that your application was approved correctly. This can be done easily by checking your priority date on the Final Action chart of the Visa Bulletin. Remember that if your green card was issued by mistake, this mistake will come to light sooner or later. If you do not take action to rectify the mistake as soon as possible, it will cause issues for you that cannot be undone.

Green Cards Not Issued in Error

Green card applicants have recently been reporting that their I-485 applications have been approved, despite their priority dates not being current during the month when their approval was made by USCIS.

In response to inquiries from immigration attorneys, USCIS has said they are aware of these approvals, but these were not made by mistake.

According to USCIS, such applications were approved based on a proper allocation of visa numbers, before priority cutoff dates were published by the Department of State. For example, if your green card application was approved in November, but your priority date was not current that month, this means that USCIS had already requested and reserved a visa number for you in late September or October. This made you eligible to receive a green card.

In such a case, you do not need to worry and can retain your green card.

Conclusion

 Mistakes happen. When it comes to green cards, correcting these mistakes is critical when you have received a green card you were not eligible to receive. To avoid any consequences to your immigration status, always verify that your green card was issued in the correct manner. If you suspect that your green card was issued in error, or you have received a Notice of Intent to Rescind (NOIR) from USCIS, you should contact an immigration attorney immediately to evaluate your case.

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