Assistance With Appeals
Should a petition or application be denied or revoked by the USCIS (formerly the INS), in most cases an applicant may appeal that decision to a higher authority. The Administrative Appeals Unit ("AAU") has jurisdiction over 40 petitions and applications. If an applicant receives a denial notice, it will advise him or her of their right to appeal, the correct appellate jurisdiction (AAU or BIA), and provide the applicant with the appropriate appeal form and time limit. An immigration attorney should be retained to provide assistance with the appeals process.
There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. An applicant may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree and change the original decision, disagree and affirm the original decision, or send the matter back to the original office for further action.
In addition to the right to appeal (in which an applicant asks a higher authority to review a denial), in many cases a motion to reopen or a motion to reconsider may be filed with the office that made the unfavorable decision. By filing these motions, an applicant may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or INS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee shortly after the decision. Although you are not required to have an attorney represent you, an immigration lawyer familiar with this process can be of valuable assistance.
There is no appellate review of denials of extension of stay or change of nonimmigrant status. Only one appeal may be filed for each denial or revocation; there is often no appellate review of an appellate decision.
Only the person that submitted the original application or petition may file the appeal. The petitioner alone has standing to appeal the denial of a visa petition. The beneficiary of a visa petition may not appeal the decision. For instance, if a United States employer petitioned for an immigrant visa for an employee living abroad, only the United States employer may appeal the denial. The employee living abroad may not appeal the denial.
The person appealing the decision may be represented by an attorney or representative. If the petitioner is represented, the appeal must be accompanied by the proper USCIS form. The form must be signed by both the attorney or representative and the person who filed the original petition or application.
If the Administrative Appeals Unit has jurisdiction over the decision, the notice of appeal must often be filed on Form I-290B (Notice of Appeal to the Administrative Appeal Unit). The appeal must be filed with the office that made the original decision. A brief (explanation) may be filed in support of your appeal. The fee must also be included. If a fee waiver is required, this may be available.
