Given the complicated procedures that sometimes come about as the result of the immigration process, it’s possible that some cases may have some legal grounds for filing an appeal. Petitioners and applicants for certain immigration benefits may file an appeal with the Administrative Appeals Office (AAO) to attempt to overturn an unfavorable decision made by U.S. Citizenship and Immigration Services (USCIS) officers.
Although it’s tempting to see the appeals process as a natural one in which every decision can be questioned, it’s important to understand how these processes work. In many cases, an appeal will have very little chance of succeeding based on the established precedent. In other cases, it’s important to consult with a legal team to find out if your case truly does have a chance at succeeding on appeal.
The Administrative Appeals Office, which falls under USCIS, hears and decides these appeals. Although some cases may in turn eventually land on the desk of the Attorney General, most appeals will be handled directly by the AAO – which is why it’s important to know not only what role this office has, but how the appeal process works.
It all starts with a basic understanding of the Administrative Appeals Office. As you might imagine, the role of this office is to hear appeals on unfavorable decisions, giving a possible review to those cases that otherwise would have little recourse. As the AAO website notes, the decisions this office makes tend to be of a “non-precedent” nature, which means that these decisions are binding on the parties involved, but do not create or modify USCIS policy or practice. Rather, they apply existing law and policy to the facts of the case.
However, there are some instances in which precedents may come in to play, with review by the Attorney General. In such cases—although rare—the AAO may make a ruling that has the ability to describe how the law is to be properly interpreted in the future. Precedent decisions must be followed by all DHS employees.
Why is it important to understand the AAO? Because the AAO has a high degree of authority when it comes to appeals.
Not every type of denied immigration benefit request may be appealed. There are generally 50 different immigration case types over which the AAO holds jurisdictional authority. Those can include employment-based immigrant and nonimmigrant petitions, immigrant petitions by alien entrepreneurs, applications for Temporary Protected Status, Fiance(e) petitions, applications for waiver of ground of inadmissibility, and many more categories. An immigration attorney can help you determine whether the AAO has jurisdiction over your appeal.
To appeal an unfavorable decision, the party or the entity must have legal standing. Once it is determined that there is legal standing, Form I-290B is used to file an appeal with the AAO – but it also provides the ability to file a motion with the USCIS regarding a recent decision in your specific immigration case. The form must also be accompanied by a statement explaining the basis for the appeal as well as filing fee. There are time limits to the filing, so be sure to talk to an attorney immediately after receiving the unfavorable decision.
You’ll notice that Form I-290B allows for both appeals and motions. Why is this, and what are the differences between the two actions?
An appeal will go to the AAO. In general, an appeal is a request made to a higher authority than one who made the decision - which is why the United States has a system of appeals courts in place for this very purpose. With the AAO, decisions regarding your specific immigration case will be made, which is why it’s important to have all your ducks in a row for any appeal.
A motion generally looks to reopen a case (based on new facts and evidence) or reconsider a decision at the same level where the decision was made. For example, a motion to reconsider a decision has to be made to the same “service center” which initially ruled on the decision in the first place.
Although it might seem that an appeal is always the best option, it’s always good to consult an attorney on your specific case first.
There are certain restrictions on appeals, which is why it’s important to consult with an immigration attorney when considering filing an appeal. Although the United States government does make Form I-290B available online, it’s better to understand what’s required before settling down into the nitty-gritty of an appeal.
Consult with a legal team experienced in filing appeals before taking action on your own case. For more information on appeals and whether your case might succeed with one, contact Reeves Immigration Law Group to consult with a team comprised of knowledgeable and experienced immigration attorneys.