In the event an immigration petition or application is denied or revoked, the petitioning party may be able to appeal the decision. The notice of revocation or denial will advise the petitioning party if they have the right to appeal and, if so, the procedure for appealing the decision. The type of petition or application being appealed will determine the reviewing authority. The Administrative Appeals Office (AAO) and Board of Immigration Appeals (BIA) are the two government agencies with original jurisdiction over immigration appeals.
The notice of revocation or denial will not only specify the reason for the decision and identify the appellate body with jurisdiction, but also indicate the correct appeal form, filing location and deadline. Generally, appeals from an application or petition that was denied must be filed within 30 days of the original decision, and appeals from an approved application or petition that was revoked must be filed within 15 days. An additional fee is required to file an appeal, but the appealing party may apply for a fee waiver under certain circumstances. The appealing party has the option of being represented by an attorney and filing a brief in support of the appeal. Ultimately, the reviewing authority will make one of the following determinations:
- Uphold the original decision;
- Reverse the original decision; or
- Remand the matter to the original adjudicator for further action.
It is important to note that only one appeal per denial or revocation may be filed, and denials of extensions or change of nonimmigrant status cannot be appealed. Moreover, only the petitioning party, and not the beneficiary, has standing to appeal an adverse decision. The timeframe for processing and receiving an appeal decision can range anywhere from an immediate decision up to two years.
Administrative Appeals Office
The AAO is a unit within the United States Citizenship and Immigration Services (USCIS) and has jurisdiction over many of the appeals arising from the denial of a petition or application. If the AAO has jurisdiction over the appeal, the proper form to file is Form I-290B Notice of Appeal to the Administrative Appeal Office. Oral argument can be requested in writing during the time allotted for filing, but the USCIS has full discretion in determining whether oral argument will be granted. If oral argument is granted, the AAO will designate the time, place, date and conditions.
Board Of Immigration Appeals
The BIA is part of the Executive Office of Immigration Review. It has jurisdiction over, among other things, appeals arising from removal or exclusion orders, fines, motions to reconsider and motions to reopen. The BIA primarily conducts "paper" reviews without courtroom proceedings, but has been known to grant oral argument on rare occasions.
Motions To Reopen Or Reconsider
Within 30 days of an adverse decision, a petitioning party may file a motion to reopen or a motion to reconsider. A motion to reopen requests that the adjudicating authority reopen the case because new evidence or facts are available that may alter the original determination. Alternatively, a motion to reconsider alleges that the original decision contained an erroneous application of law or policy that should be reconsidered by the adjudicator.
Judicial appeal to the US Circuit Court is typically the appropriate tribunal upon exhausting all administrative appeal process. It is critical however that in most cases appeal through the administrative appeal process is properly presented and exhausted with critical facts preserved for Circuit Court appeal. The opportunity to present additional facts or evidence at this level is limited. In some circumstance appealing to the federal court directly may be available if there no administrative appeal tribunal with Jurisdiction to address certain grievances, such as pure constitutional questions.
In all cases filing an appeal requires experienced counsel with ability to properly present your case.