Administrative Appeals With the USCIS

Facing a U.S. visa denial may feel frustrating and overwhelming. For some, it is a major setback. You have gone through the preparation and submission of immigration documents only to be denied the visa you are trying to obtain. However, in some visa denials, you have the chance to appeal the decision made by the U.S. Citizenship and Immigration Services (USCIS). This article will give you a better understanding of your rights and the steps that you can take to conduct an administrative appeal.

What Can I Do if I Receive an Unfavorable Decision from the USCIS?

If you receive an unfavorable decision from the USCIS, you may be eligible to file an appeal. This enables the visa applicant or petitioner to have their case reviewed by either the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), which is a part of the Department of Justice (DOJ). The AAO and the BIA are administrative bodies with the authority to handle different immigration-related matters.

On the other hand, a motion is a request to the USCIS field office that initially made an unfavorable decision. You are asking the USCIS office to reconsider your case through a motion. You may file a motion to reconsider or reopen if you receive an unfavorable decision. You may also file a motion even in cases where an appeal is not possible.

How Will You Know if the Decision Is Appealable?

The notice you receive upon denial of your immigration request will provide details on whether the decision is appealable.

The Administrative Appeals Office (AAO)

The Administrative Appeals Office (AAO) handles appeals of unfavorable decisions. Applicants and petitioners of certain immigration categories may appeal the unfavorable decision they received to the AAO. The AAO, in turn, conducts administrative reviews on these appeals and ensures the accuracy and consistency in interpreting immigration laws and policies.

What Are the Case Types That Can Be Appealed to the AAO?

The AAO exercises appellate jurisdiction under the authority that the Department of Homeland Security (DHS) delegated to the USCIS. That means the AAO handles cases filed with USCIS and other determinations issued by the U.S. Immigration and Customs Enforcement (ICE).

The following categories are some of the immigration cases handled by the AAO:

• Applications for Temporary Protected Status (TPS) (Form I-821)
• Fiancé(e) petitions (Form I-129F)
• Most employment-based immigrant and nonimmigrant visa petitions (Forms I-129 and I-140)
• Immigrant petitions by alien entrepreneurs (Form I-526)
• Applications for waiver of ground of inadmissibility (Form I-601)
• Applications for permission to reapply for admission after deportation (Form I-212)
• Applications to preserve residence for naturalization purposes (Form N-470); and
• ICE determinations that a surety bond has been breached
• T and U visa applications and petitions (Forms I-914 and I-918) and the related adjustment of status applications
• Certain special immigrant visa petitions (Form I-360, except for Form I-360 widower appeals, which are appealable to the BIA)

The AAO also has jurisdiction in reviewing decisions by the USCIS service centers when they revoke previously approved petitions.

It is important to remember that not every denial of immigration benefits is eligible for appeal. Also, some appeals fall in the jurisdiction of the Board of Immigration Appeals (BIA), which is a part of the U.S. Department of Justice (DOJ). The AAO does not consider appeals in the following cases:

• Abandoned applications and petitions
• Denied motions to reopen or reconsider
• Rejected applications and petitions
• Unfavorable AAO decisions
• Withdrawn applications and petitions

Where Do I File an Appeal?

The USCIS webpage has a directory of direct filing addresses that you can check. This contains the addresses where you can file your appeal. If you mail your appeal, give it enough time for the document to be at the USCIS office on or before the deadline. The notice of denial or revocation of your request will have the information on what forms you should use when filing your appeal.

How Do You Appeal an Unfavorable Decision From the USCIS?

Suppose the USCIS makes an unfavorable decision on an immigration benefit request, such as a visa. In that case, it will send a letter to the applicant or petitioner from the office that issued the decision. This letter will explain the reason for the unfavorable decision and how to file a motion or an appeal.

If you are an appellant, you should submit your appeal using the Notice of Appeal or Motion (Form I-290B) with the appropriate filing fee. You should file Form I-290B within 30 calendar days if the decision was personally served or 33 calendar days if through mail.

Note that specific immigration categories may ask for different appeal requirements. With this, it is best to look at the denial letter and the guidelines set by USCIS to ensure your compliance with the appeal procedures.

Burden of Proof

You, as the appellant filing the appeal, have the burden of proof to establish your eligibility for the immigration benefit request. You must persuade the agency that the final decision should favor you. You must bring enough evidence to decide your case based on the legal merits. The USCIS will decide based on the law as it sees it — personal or emotional arguments won't make a difference.

You are responsible for showing your eligibility for the immigration benefit by a "preponderance of the evidence." What this means is that the evidence you provide should show that it is "probably true" that you've stated the facts accurately and should win the case.

To meet this standard you have to show meaningful, relevant, and trustworthy evidence. This evidence should convince the AAO that your claim is probably true. Simply put, you should establish that there is more than a 50% chance that your claim is accurate.

When in doubt, it is best to contact an immigration law attorney near you. They can guide you through the process of filing an administrative appeal.

Initial Field Review With the USCIS Field Office

The USCIS field office that initially rejected the request for immigration benefits will do a preliminary review of the appeal. The field office will decide whether to reverse the initial decision and approve the request. During this stage of the review, the USCIS local office can do one of the following:

• Consider the appeal a request to reconsider or a motion to reopen the case. It will then approve the petition or application.
• Send the appeal to the AAO and all the necessary records and documents for further examination.

The USCIS field office often completes the initial review within 45 days.

Request for Expedited Processing

In general, the AAO processes appeals based on the order it was received. However, it may consider requests for expedited process on a case-by-case basis. If you would like an expedited appeal, you may send a written request to the AAO by fax or mail. The letter should clearly state "EXPEDITED REQUEST." You should submit the request and proof, justifying why you need faster processing.

When Should I Expect To Receive a Decision on an Appeal?

The AAO has a 180-day window to complete appellate reviews. This is 180 days from the date the case is received after the initial field review. But, it is important to remember that the processing times may vary. Some cases might go beyond the 180 days because of other factors beyond AAO's control. For instance, further documentary evidence might be needed to complete the case or when the case is particularly complicated and needs a more thorough review.

Should I Get a Lawyer for an Immigration Appeal?

Due to the complexity of the administrative appeal process, it is highly advisable that you seek an immigration attorney near you. An immigration law attorney gives you advice particularly tailored to your case. They understand the process and legal nuances better, particularly when appealing U.S. visa denials. They can also assist in presenting and gathering evidence to ensure they comply with the USCIS policy.

It is important to remember that the burden of proof is on you as the appellant of the case. So, a skilled immigration lawyer helps meet this burden of proof. They can also assist you in navigating through the initial review process and, if needed, ask for an expedited processing of your appeal.