Should I Bring an Attorney With Me to the USCIS Interview?

With a very few exceptions, an in-person interview with USCIS adjudicator is a required step in the review process for all employment and family I-485 adjustment of status and all N-400 naturalization applications.  An interview is required for many I-751 removal of condition applications as well.  An applicant has the right to be accompanied by an attorney to such interview and a very common related question our office receives is, “Should I Bring an Attorney with Me to the USCIS Interview?”

Yes, We Do Recommend Bringing Attorney to the USCIS Interview

We are certainly biased but after having been to scores of USCIS interviews, our general recommendation is for an I-485, I-751 or N-400 applicant to bring an attorney with them to the USCIS interview.   Even though the adjudicator would direct all factual questions to the applicant(s), an attorney at the interview plays an important (and often critical) role.  An attorney at the USCIS interview would:

Provide Clarifications, Explain Facts and Provide Legal Arguments. 

If there is a need to clarify a question (by the adjudicator) or an answer (by the applicant), it is the attorney’s role to “jump in” and provide such clarification in order to keep the interview on track.   Similarly, if the case has an outstanding factual or legal issue, it is the attorney’s role to draw the adjudicator’s attention to such facts or legal arguments and make them on behalf of the applicant.

Example:

Our client did not disclose prior citations on the I-485 (or N-400) application because the applicant did not realize that traffic (or other) tickets are considered a “citation” (they are!).  The failure to disclose citations on the I-485 (or N-400) can be a significant negative factor even if it was done inadvertently.  During the interview our attorneys were able to clarify that there are, in fact, citations that should have been disclosed and we addressed the reasons why such citations were (inadvertently) not disclosed on the I-485(or N-400).   Similarly, our attorney was able to explain that the substance of such citations should not affect the outcome of the application.  The adjudicator agreed and approved the I-485 application

Example:

An employment-based I-485 applicant who was on H-1B status had a prior H-1B denial which had caused the applicant to be without status and unlawfully present for a brief (less than 180 days) period of time.  Our attorney was able to explain the circumstances to the adjudicator and to provide the required legal arguments that Section 245(k) “excuses” up to 180 days of unlawful presence.   The attorney was able to successfully and explicitly explain how the law and the facts justify approval despite such an issue.  The adjudicator agreed and approved the I-485 application.

Seek Solutions and Prevent Disaster. 

Rarely, an attorney’s role is to intervene in a more decisive manner if the adjudicator intends to take a negative action on a case.  Sometimes an adjudicator comes into an interview with a predetermined view that a certain facts justify denial or finding of ineligibility.  This can be based on incorrect facts or understanding of the law, or it may be fully justified.  An attorney’s role in this situation is to try to understand the basis of the adjudicator’s assertions and to seek an opportunity to prevent or delay a negative decision by possibly asking for an opportunity to provide facts and arguments in response at a later time.   Having an attorney during a confrontation like this is absolutely essential.

Example:

An attorney from our office accompanied an N-400 applicant who, due to the nature of his employment, was required to travel abroad for extended periods of time.  As part of the initial N-400 filing our office carefully analyzed and documented the naturalization eligibility and, specifically, the physical residence requirements.  During the interview the adjudicator simply stated:

“Mr. Smith (real name changed),  I have determined that you are not eligible for naturalization for not having sufficient physical presence in the United States and I am giving you an opportunity to either withdraw your application right now or I will issue a denial.” (emphasis added)

At this time, our client was obviously stunned but our attorney was able to engage with the adjudicator to understand exactly the way the adjudicator had calculated the physical presence dates and we were able to argue that the calculations were either incorrect or were based on incorrect travel dates (based on often inaccurate CBP entry/exit records).  The attorney was able to negotiate with the adjudicator to withdraw the two options given to the applicant and to instead provide an opportunity to review the negative facts and respond by having a request for evidence or notice of intent to deny issued.  We were also able to convince the adjudicator to otherwise conduct and complete the interview, including the English language and civics tests.   Afterwards, an oath notice indicating approval was issued a few days later – very likely because the adjudicator took the time to carefully review the travel dates and the calculations.    We believe that having an attorney present at this interview saved the case from being withdrawn or denied (erroneously).

Be a Friend.   

We also think it is important to have a “friend” at the interview, even if the interview is going well.  Some applicants are, understandably, stressed and nervous when attending the USCIS interview and having an attorney who understands the process, including its logistics and dynamics, can be tremendous moral support.  Even when we do not have to intervene during a “good” USCIS interview and when we do not have to say much other than exchange pleasantries,  our clients have told us that the mere presence of an attorney during the process has made them feel more relaxed and comfortable throughout the interview which ultimately helps with the outcome.

Does Bringing an Attorney Impact the Application or the Interview Negatively?

In our experience, having an attorney at the USCIS interview does not impact the application or the interview negatively.  We have heard applicants express concern that bringing an attorney with them to the interview makes the adjudicator think that there is something “wrong” with the application or that they have something to “hide.”   We cannot disagree more.

An applicant has a right to an attorney at the USCIS interview and bringing one, based on our experience, is not viewed negatively in any way.  To the contrary, we have heard from adjudicators that having an attorney present helps everyone because the attorney is able to prepare the clients, bring out relevant information and clarifications and otherwise help the adjudicator reach a decision more efficiently and without having to delay a case by asking for additional information or clarifications at a later time.

USCIS Interview Preparation Services

Our firm always offers interview preparation for our clients’ I-485, N-400 or I-751 interviews.  We also offer such interview preparation services to applicants who have not otherwise used our services to file their applications.  In limited cases we are also able to accompany applicants in person to their I-485, N-400 or I-751 USICS interviews.  Please contact us if our office can be of any assistance.

Conclusion

As discussed in this article, we believe that it is very important to have an attorney help an applicant prepare for and attend the USCIS interview, even where the interview may appear “straightforward” or “easy.”  We have seen way too many cases where the applicant felt comfortable presenting their case only to be confronted with information which they could not address or rebut and which has lead to a denial.  Appealing an incorrect denial is certainly possible but it is very expensive and time-consuming (in some I-485 cases requiring stopping employment or even departing the US).

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