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The U.S. Citizenship and Immigration Services (USCIS) is the agency which grants applications for green cards, U.S citizenship, and applications for, extensions, and changes of temporary visa status.
The eligibility of applicants for any of those privileges are subject to the intricate considerations by the same agency; implying the possibility of being denied.
Should a petition or application for a Visa be denied or revoked by the U.S. Citizenship and Immigration Services (“USCIS”) or immigration court, you may appeal that decision to a higher authority.
A. Appeals of denials of USCIS Decisions
The USCIS Administrative Appeals Office (AAO) has jurisdiction over 40 petitions and applications. The AAO has five main functions:
- To adjudicate appeals under authority delegated to the USCIS by the Secretary of DHS
- To work to resolve immigration issues in a timely and efficient manner and produce appellate decisions that provide fair and legally supportable resolutions of individual applications and petitions for immigration benefits
- To review the decisions made by USCIS adjudication officers on petitions and applications for immigration benefits to ensure consistency and accuracy in the interpretation of immigration laws
- To maintain the awareness of applicable case law to insure compliance with the most current legal standards while ensuring accuracy and legal sufficiency
- To recommend the publication of precedent decisions to clarify issues in the adjudications program
If you receive a denial notice, review the Form I-292 or notice of denial that accompanied the adverse decision to identify whether you are eligible to appeal the denial of your petition or application.
There are strict deadlines that must be met to properly file an appeal:
- The notice of appeal must be filed within 30 days of the date of the decision and must be filed on Form I-290B (Notice of Appeal to the Administrative Appeal Office).
- The appeal must be filed within 33 days following the date of decision, if received by mail.
- If it is the revocation of an approved immigration petition that you wanted to appeal, then you must file the appeal within 15 days of the date of the decision, or within 18 days of the date of the decision if the decision is received by mail.
The fee must also be included. If it is a fee waiver that you wish to have, you may see “fee waiver request procedures” and the “USCIS fee waiver policy memorandum”.
A lawyer can assist you in the filing of your appeal in a timely manner, making sure that you make the most out of the periods to appeal as allowed.
You may file a brief (a written explanation) in support of the appeal, and writing an effective, persuasive brief requires the assistance of a legal expert, emphasizing your causes for appeal, backed up by the reliefs provided to you by law.
After review, the appellate authority may: agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.
It is to be noted that the person who submitted the original application or petition may file the appeal, having the standing to appeal the denial of a visa petition. The beneficiary of a visa petition may not appeal the decision.
Example of this is that an employer from the United States is petitioning for an immigrant visa for his employee abroad. Only the employer can appeal the denial and not the employee living abroad.
The person appealing the decision may be represented by an attorney or representative. When represented, the appeal must be accompanied by a properly executed USCIS Form G-28, Notice of Entry or Appearance as Attorney or representative and the person who filed the original application or petition
B. Motions to reconsider and reopen before the AAO
In some cases, challenging a denial decision made by the USCIS on a petition or application for immigration benefit is possible. This may be done through the filing of a Motion to Reopen or Motion to Reconsider with the USCIS, or an appeal to the Administrative Appeals Office (AAO).
The procedures which govern the filing and processing of these motions are complex; and issues such as timely filing of the motion should be considered.
In both of these options, applicants need to be represented by a legal professional who can assist them throughout the process.
Motion to Reconsider. In a Motion to Reconsider, the applicant must assert the following:
- The decision of denial was based on an incorrect application of law or USCIS policy
- The decision was incorrect based on the evidence in file at the time the decision was made
- There are new and additional legal arguments that should be considered to obtain a favorable decision
There are certain rules though pertaining to the number of motions allowed, as well as the deadlines that need to be closely followed.
Motion to Reopen. In a Motion to Reopen, the applicant must assert the following:
- There are new pieces of evidence that may permit a favorable decision
- There are changed circumstances that may change the decision
In a Motion to Reopen, such assertions must be supported by affidavits and other documentary evidence. A Motion to Reopen may also be filed when a petition or application was denied on the ground of abandonment.
As with appeals, the person who submitted the original application or petition may file the motion to reopen and/or reconsider. The petitioner has standing to file his motion to reopen and/or reconsider the denial of a visa petition. However, the beneficiary of a visa petition may not file such a motion.
The person filing the motion to reopen and/or motion to reconsider may be represented by an attorney or representative. When represented, the motion must be accompanied by a properly executed USCIS Form G-28, Notice of Entry or Appearance as Attorney or representative and the person who filed the original application or petition.
In both of these Motions, having an attorney to represent you in court is imperative. With a lawyer to help you through the process, you get to augment the opportunities for you to acquire a favorable decision, giving you better means to assert your eligibility for immigration privileges.
C. Appeals before the Board of Immigration Appeals
The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. This Board has the jurisdiction, nationwide, to hear appeals from certain decisions rendered by immigration judges and by district directors of the DHS in variety of proceedings in which the government of the United States is one party and the other party is an alien, a citizen, or a business firm.
BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most of its decisions are subject to judicial review in the federal courts. The majority of its appeals involve orders of removal and applications for relief from removal.
Other cases are: exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.
If the relief you tried to seek in immigration court was denied you may appeal the adverse finding of the immigration judge (or district director if denial made by USCIS) by filing a notice of appeal to the Board of Immigration Appeals.
It is incumbent to closely read the immigration judge’s order and/or notice of denial by the district director to identify whether you are eligible to appeal the denial of your petition or application. It is also imperative that the applicant must RESERVE the right to appeal to the BIA after the judge issues the decision.
A summary of the BIA Appeals process is as follows:
1. Applicant completes and sends the “Notice of Appeal” forms to the BIA.
The notice of appeal must be filed within 30 days of the date of the decision, and must be received by the 30th day. If the Board has not actually physically received the notice of appeal by the 30th day, the appeal will be dismissed. The fee must also be included.
In your application, it is important that the directions are followed carefully. Check “no” on the question of whether or not you want an oral argument; and “yes” to the filing of a brief. Where it asks you for your reasons for filing an appeal, write a short paragraph on why you want to file an appeal.
2. The BIA sends the applicant a receipt of the records
3. The BIA sends the applicant a briefing schedule; along with a copy of the transcript and the Immigration Judge’s decision.
4. Applicant sends the brief to the BIA before the deadline.
5. The BIA reviews the brief and submits decision in one to two months.
As discussed above, the person who submitted the original application or petition may file the appeal. The petitioner (if USCIS denial) or the respondent (if in removal proceedings) has standing to appeal the denial of a visa petition or relief requesting in removal proceedings.
The person appealing the decision may be represented by an attorney or representative. When represented, the appeal must be accompanied by a properly executed EOIR-27 Notice of Entry or Appearance as Attorney or representative before the Board of Immigration Appeal.
Having to go through the entire process of filing for an appeal with the BIA requires in-depth knowledge of law and procedures; thus, calling for an attorney to represent you in court. A legal professional can efficiently assist you throughout the process– from the filing for an appeal to the preparation of the necessary documents along with a persuasive, effective brief.
D. Motions to reconsider and/or reopen before the immigration judge or Board of immigration appeals
In filing a motion to reopen or a motion to reconsider, you may ask either the immigration judge or Board to reexamine or reconsider its decision.
Motion to Reconsider. In a Motion to Reconsider, the applicant must assert the following:
- The decision of denial was based on an incorrect application of law or USCIS policy
- The decision was incorrect based on the evidence in file at the time the decision was made
- There are new and additional legal arguments that should be considered to obtain a favorable decision
There are certain rules though pertaining to the number of motions allowed, as well as the deadlines that need to be closely followed.
Motion to Reopen. In a Motion to Reopen, the applicant must assert the following:
- There are new pieces of evidence that may permit a favorable decision
- There are changed circumstances that may change the decision
There are certain rules pertaining to the number of motions allowed as well as deadlines that need to be closely followed.
As with appeals, the person who submitted the original application or petition may file a motion to reopen/reconsider. The petitioner (if USCIS denial) or the respondent (if in removal proceedings) has standing to bring this motion.
The person bringing the motion may be represented by an attorney or representative. When represented, the appeal must be accompanied by a properly executed EOIR-27 Notice of Entry or Appearance as Attorney or representative before the Board of Immigration Appeal.
E. Appeals before the circuit courts
If all else fails and you have no other option, there are certain instances where an appeal can be made before the appellate court sitting in your district.
The final agency decision of the BIA may be subject to further litigation in a U.S circuit court of appeals. While being courts of limited jurisdiction, Federal courts can hear cases related to immigration matters.
Federal courts can be used to challenge:
1. The unreasonable delay in adjudicating and application or petition in the USCIS
2. The denial of an application for naturalization in the USCIS
3. The unlawful detention of someone in the custody of immigration
4. A removal order on constitutional or legal grounds
Litigation of Immigration matters in federal court can lead to a resolution of the case in a weeks or months’ time. This procedure requires the intricate knowledge of law and procedure or a licensed attorney.
You Need an Administrative Appeals Immigration Attorney
Period for Filing. USCIS, BIA, and the Federal Courts implement a strict time frame in the filing of your motions for appeal. No matter what the grounds for your appeal may be, you should meet the deadlines as set by the rules and law. With a lawyer to assist you through the process, you can be sure that you file your appeals on time.
Preparation of a Persuasive, Effective Brief. It takes an expert in law and procedure to come up with a persuasive brief, or narrative of facts as to why the decision against your application must be reversed. A lawyer can effectively highlight your eligibility for the privilege, as much as a lawyer can assert the rights and reliefs granted to you by law in your immigration applications.
Exhaustion of Remedies. With a lawyer representing you in your case, you get the exhaust all remedies possible to obtain a favorable decision on your end. The legal expertise of a lawyer is meant to help you make the most out of what law has to offer.
Professional Advice. Beyond representing to in court and litigation proceedings, having a lawyer can give you that peace of mind and security that your case is heard in court.
At Gambacorta Law Office, our immigration lawyers as passionate with helping out clients having immigration case issues at the administrative appeals level. We undertake all efforts to obtain a favorable judgment for you, helping you make the most out of what the law can afford.