APPEALING A DENIAL BEFORE THE ADMINISTRATIVE APPEALS OFFICE
Do you disagree with USCIS’s decision made on your petition or application?
What can you do if USCIS has denied your petition or application? You may be able to challenge USCIS’s decision by filing an appeal or motion. When USCIS denies a petition or application, a written decision is sent to you explaining the reasons why your petition or application has been denied. Unfortunately, denials by USCIS are becoming increasingly more and more common. Challenging a decision made by USCIS requires adhering to strict deadlines, filing the right paperwork, and preparing a legal and factual argument explains why the decision was wrong.
Typically, you have 30 days to file your notice of appeal or motion. How you challenge a decision depends upon the application or petition that was denied. Some unfavorable decisions may be appealed to the Administrative Appeals Office (i.e. AAO) or Board of Immigration Appeals (i.e. BIA) while with others, you can only file a motion to reconsider and/or reopen with USCIS. Challenging a denial made by USCIS is often complex and time-consuming. Having the assistance of an experienced immigration attorney is often key to successfully challenging a decision made by USCIS.
Our team of experienced immigration attorneys can determine whether you can appeal or need to file a motion to reconsider and/or reopen and the proper procedure for challenging the unfavorable decision.
APPEALS OF USCIS DECISIONS TO THE BOARD OF IMMIGRATION APPEALS
Do you disagree with USCIS’s decision denying your family-based immigrant visa petition?
MOTION TO RECONSIDER FILED WITH USCIS
Do you believe USCIS incorrectly applied the law or policy when denying your petition or application?
MOTION TO REOPEN FILED WITH USCIS
Can you show new facts that may change USCIS’s decision to deny your petition or application?
If USCIS has denied your petition or application, you may be able to file an appeal with the Administrative Appeals Office (i.e. AAO). Not all unfavorable decisions are reviewable by the Administrative Appeals Office. Only the applicant or petitioner can file an appeal with the AAO. You may be able to file an appeal with the AAO if USCIS has denied:
- Your company’s employment-based immigrant and nonimmigrant visa petition (i.e. Form I-129 or Form I-140);
- Your immigrant visa petition seeking classification as an alien entrepreneur (i.e. Form I-526);
- Your application for Temporary Protected Status (i.e. TPS or Form I-821);
- Your fiancé(e) visa petition (i.e. Form I-129F);
- Your application for waiver of ground of inadmissibility (i.e. hardship waiver or Form I-601);
- Your application for permission to reapply for admission after removal or deportation (i.e. Form I-212);
- Your special immigrant visa petition (i.e. Form I-360) unless you filed seeking classification as a widow(er);
- Your orphan petition or application (i.e. Form I-600 or Form I-600A);
- Your T or U visa application or petition (i.e. Form I-914 and Form I-918) and any related application for adjustment of status (i.e. Form I-485);
- Your application to preserve residence for naturalization purposes (i.e. Form N-470); or
- A decision by a USCIS Service Center revoking certain previously approved petitions.
While the Board of Immigration Appeals (i.e. BIA) most often considers appeals of decisions by Immigration Judges, it does have jurisdiction over some adverse decisions by USCIS. The BIA has jurisdiction over decisions by USCIS denying family-based immigrant visa petitions (i.e. Form I-130, Petition for Alien Relative or I-130). There are several reasons USCIS can deny your Form I-130, Petition for Alien Relative. For example, your Form I-130 may be denied if there is a lack of evidence to establish your relationship to the beneficiary or your relationship is not recognized as a matter of law (i.e. a bigamous marriage). More problematic is when USCIS denies a Form I-130 for fraud especially if the immigrant visa petition is based upon marriage. You can find yourself permanently barred from the United States if USCIS finds you committed fraud.
Whether it is worth filing an appeal depends upon why the immigrant visa petition was denied. Sometimes, it is more practical to simply re-file the Form I-130, Petition for Alien Relative with USCIS rather than appeal the denial. For example, if you and your spouse were not yet living together and thus, had limited evidence to show your marriage was entered in good faith, it may best to simply re-file the immigrant visa petition. However, it is important to keep in mind that filing a new immigrant visa petition does not give you a clean slate. A fraud finding will carry over to subsequent immigrant visa petitions so you will need to be able to establish you did not commit fraud. On the other hand, if USCIS found you entered into a sham marriage, you should strongly consider filing an appeal. Failing to file an appeal can lead to your immigration record being permanently damaged by the marriage fraud finding.
If you or your family member’s immigrant visa petition is denied, you should contact our team of experienced immigration attorneys immediately. You only have 30 days from the file a Notice of Appeal. Failure to file a timely appeal results in the decision becoming final.
You may be able to file a motion to reconsider with USCIS if the unfavorable decision is the result of USCIS incorrectly applying the law or USCIS policy. Your motion must establish USCIS’s decision was incorrect based upon the facts as existed at the time the decision was made. In your motion to reconsider, you must cite applicable law including statutes, regulations, or precedent decisions.
You typically have to file a motion to reconsider within 30 days of USCIS’s decision. If you properly file a motion to reconsider, USCIS will issue a new decision. However, it is important to note that filing a motion to reconsider does not suspend the implementation of the unfavorable decision or extend your ability to remain in the United States.
You may be able to file a motion to reopen if you would like USCIS to review its unfavorable decision based upon new facts. Your motion to reopen must state new facts you wish to have considered by USCIS. You cannot simply reargue previously stated facts or resubmit evidence that was previously filed with USCIS. In addition to stating the new facts, you must submit affidavits and other supporting evidence to show you were eligible for the requested immigration benefit at the time your petition or application was originally filed with USCIS.
If USCIS denied your petition or application because you failed to timely respond to a request for evidence or notice of intent to deny, you may file a motion to reopen if you can demonstrate:
- The evidence USCIS requested was not material to your petition or application;
- You previously submitted the required to USCIS at the time of filing your petition or application;
- You timely appeared or submitted the additional evidence during the time USCIS set for doing so; or
- USCIS sent the request for evidence or appearance to the wrong address.
You typically have to file a motion to reopen within 30 days from the date USCIS made the unfavorable decision. If you properly file a motion to reopen, USCIS will issue a new decision. However, it is important to note that filing a motion to reopen does not suspend implementation of the unfavorable decision or extend your ability to remain in the United States.
Not sure which option is right for you? Request a confidential consultation today.