What Should You Do If Your Family Petition Is Denied?
U.S. Citizens or lawful permanent residents of the United States can sponsor certain immediate family members for immigration to the United States. The U.S. Citizen or lawful permanent resident sponsor must file a family petition on behalf of their foreign national relative. Once approved, the foreign national relative will be on track to receive their green card and live permanently in the United States. What happens, though, if the family petition is denied?
Speak To An Experienced Immigration Attorney
It is highly recommended for anyone facing a family petition denial to speak with an experienced immigration attorney to fully understand their options, including an appeal, refiling of the family petition or other potential remedy. A family petition, specifically Form I-130 Petition for Alien Relative, may be denied for a variety of reasons. The Adjudicator’s Field Manual (AFM) of the United States Citizenship and Immigration Services (USCIS) states that the “adjudication of a relative petition deals with two issues: whether the petitioner has standing to file the petition and whether the beneficiary has the requisite familial relationship to qualify for the classification being sought.” Thus, any denial of a family petition will stem from a failure to establish one or both of those items. The notice of denial will indicate the reasons for the denial, as well as explain the process and timelines for an appeal.
Appeal To The Board Of Immigration Appeals
If an appeal is available, instructions for pursuing the appeal will be included in the notice of denial. Form I-130, Petition for Alien Relative, is appealable to the Board of Immigration Appeals (BIA). An appeal to the BIA must be filed on Form EOIR - 29 within 30 days of the final USCIS decision and submitted to the USCIS office that originally denied the petition. Form EOIR - 29 can only be submitted by the petitioning party and not the beneficiary. Accordingly, Form EOIR - 29 must be signed by the petitioner only.
The appeal will be reviewed by a one member BIA panel, unless the petitioner can provide a specific factual or legal basis that warrants review by a three member panel. Historically, only the following situations meet the threshold for obtaining review by a three member panel:
• The need to establish a precedent construing the meaning of laws, regulations or procedures;
• The need to review a decision by the USCIS that does not conform with established law or precedent;
• The need to resolve a case or controversy of national importance; and/or
• The need to reverse a decision of the USCIS, other than a decision by a single BIA member that is plainly consistent with and required by intervening Board or judicial precedent, an intervening Act of Congress or an intervening final regulation pursuant to 8 C.F.R § 1003.1(e)(5).
Petitioners may be represented by legal counsel on appeal to the BIA and a brief in support of the petitioner’s appeal may be filed no later than 21 days after the appeal notice is issued. It is important to note that the USCIS will have seasoned government attorneys representing their interests and, therefore, it is in the petitioner’s best interests to be represented as well. Technically, the BIA cannot consider information that was not included in the original petition. However, if additional or new evidence is available at the time of appeal, it should be included with the appeal brief. Depending upon how compelling the new or additional information is, the BIA may remand the case to the USCIS for further consideration as opposed to upholding or reversing the original decision. The BIA’s decisions are binding on all Department of Homeland Security Officers and Immigration Judges, but subject to review by the U.S. Attorney General and the Federal courts.
Refile Form I-130, Petition For Alien Relative
In lieu of an appeal, or sometimes even after an unsuccessful appeal, a petitioner may be able to refile Form I-130, Petition for Alien Relative, on behalf of their family member. The USCIS will consider a petition abandoned if additional evidence was requested and the petitioner failed to respond within the allotted timeframe. The petitioner may have failed to respond for various reasons, including the unavailablity or non-existence of the evidence requested. Moreover, even if the petitioner responded in a timely manner, the USCIS may still have found the evidence provided insufficient to approve the petition.
Refiling Form I-130 Petition for Alien Relative may be a good option if the original petition deficiency can be cured by the availablity of new or additional evidence. The circumstances surrounding the original Form I-130 filing will need to be fully disclosed and explained in any subsequent petition, but such a disclosure will not automatically result in a denial of the new petition. It is important to note, however, that any attempt to hide or disguise a previously unsuccessful petition will result in an automatic denial of the newly filed petition.
Other Remedies
There may be additional avenues or remedies available depending upon the unique circumstances of each individual case. An experienced immigration attorney is best qualified to help develop an alternative, case-specific strategy in the event a family petition has been denied.
Speak To An Experienced Immigration Attorney
It is highly recommended for anyone facing a family petition denial to speak with an experienced immigration attorney to fully understand their options, including an appeal, refiling of the family petition or other potential remedy. A family petition, specifically Form I-130 Petition for Alien Relative, may be denied for a variety of reasons. The Adjudicator’s Field Manual (AFM) of the United States Citizenship and Immigration Services (USCIS) states that the “adjudication of a relative petition deals with two issues: whether the petitioner has standing to file the petition and whether the beneficiary has the requisite familial relationship to qualify for the classification being sought.” Thus, any denial of a family petition will stem from a failure to establish one or both of those items. The notice of denial will indicate the reasons for the denial, as well as explain the process and timelines for an appeal.
Appeal To The Board Of Immigration Appeals
If an appeal is available, instructions for pursuing the appeal will be included in the notice of denial. Form I-130, Petition for Alien Relative, is appealable to the Board of Immigration Appeals (BIA). An appeal to the BIA must be filed on Form EOIR - 29 within 30 days of the final USCIS decision and submitted to the USCIS office that originally denied the petition. Form EOIR - 29 can only be submitted by the petitioning party and not the beneficiary. Accordingly, Form EOIR - 29 must be signed by the petitioner only.
The appeal will be reviewed by a one member BIA panel, unless the petitioner can provide a specific factual or legal basis that warrants review by a three member panel. Historically, only the following situations meet the threshold for obtaining review by a three member panel:
• The need to establish a precedent construing the meaning of laws, regulations or procedures;
• The need to review a decision by the USCIS that does not conform with established law or precedent;
• The need to resolve a case or controversy of national importance; and/or
• The need to reverse a decision of the USCIS, other than a decision by a single BIA member that is plainly consistent with and required by intervening Board or judicial precedent, an intervening Act of Congress or an intervening final regulation pursuant to 8 C.F.R § 1003.1(e)(5).
Petitioners may be represented by legal counsel on appeal to the BIA and a brief in support of the petitioner’s appeal may be filed no later than 21 days after the appeal notice is issued. It is important to note that the USCIS will have seasoned government attorneys representing their interests and, therefore, it is in the petitioner’s best interests to be represented as well. Technically, the BIA cannot consider information that was not included in the original petition. However, if additional or new evidence is available at the time of appeal, it should be included with the appeal brief. Depending upon how compelling the new or additional information is, the BIA may remand the case to the USCIS for further consideration as opposed to upholding or reversing the original decision. The BIA’s decisions are binding on all Department of Homeland Security Officers and Immigration Judges, but subject to review by the U.S. Attorney General and the Federal courts.
Refile Form I-130, Petition For Alien Relative
In lieu of an appeal, or sometimes even after an unsuccessful appeal, a petitioner may be able to refile Form I-130, Petition for Alien Relative, on behalf of their family member. The USCIS will consider a petition abandoned if additional evidence was requested and the petitioner failed to respond within the allotted timeframe. The petitioner may have failed to respond for various reasons, including the unavailablity or non-existence of the evidence requested. Moreover, even if the petitioner responded in a timely manner, the USCIS may still have found the evidence provided insufficient to approve the petition.
Refiling Form I-130 Petition for Alien Relative may be a good option if the original petition deficiency can be cured by the availablity of new or additional evidence. The circumstances surrounding the original Form I-130 filing will need to be fully disclosed and explained in any subsequent petition, but such a disclosure will not automatically result in a denial of the new petition. It is important to note, however, that any attempt to hide or disguise a previously unsuccessful petition will result in an automatic denial of the newly filed petition.
Other Remedies
There may be additional avenues or remedies available depending upon the unique circumstances of each individual case. An experienced immigration attorney is best qualified to help develop an alternative, case-specific strategy in the event a family petition has been denied.