Appealing A Denial of An Immigration Petition
By Reuben Seguritan
Every person hopes and prays that his application or petition will be approved. However, this is not always the case. If the United States Citizenship and Immigration Services (USCIS) denies the application or petition, it will send a written notification informing the applicant/petitioner of the reason for the denial and instructions as to which form to use and where to file an appeal or motion to reopen or reconsider the decision.
The applicant/petitioner may appeal the decision to the USCIS Administrative Appeals Office (AAO). This is done by filing Form I-290B Notice of Appeal. The applicant/ petitioner must show that the USCIS personnel who reviewed and decided the case made a mistake, and the application/petition should therefore be approved.
It is important to file a request for review quickly. The applicant/ petitioner has 30 calendar days from the date of service of the decision to submit the request. If the decision was mailed, the request must be submitted within 33 calendar days. Weekends and public holidays are counted while determining the number of days. Once USCIS receives the request to review, it will process the request and mail its decision.
It is crucial that the appeal be sent to the proper address. Failure to do so would constitute improper filing and there will be no appeal on the case, and hence the denial decision will become final.
Although a brief is not required to be included in the appeal, the applicant/petitioner may submit a brief to specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision. If there is no sufficient explanation of why the earlier decision was in error, the appeal may be dismissed.
It is important to note that as a general rule, the beneficiary of the petition cannot file an appeal or motion of the denial or revocation of the petition. However, the beneficiary may file the appeal or motion if he is both the petitioner and the beneficiary (for example, you are a VAWA self-petitioner, the widow(er) of a U.S. citizen, or otherwise authorized to file a visa petition for yourself).
An appeal can be filed with the Board of Immigration Appeals (BIA) in cases of denials of Form I-130, Petition for Alien Relative, and Form I-360, Self-Petition for a Widow(er) of a US Citizen by using Form EOIR-29.
The applicant/ petitioner may file a motion to reopen after the denial by the USCIS, or when there is no right to appeal. A motion to reopen is a request to the office that issued the unfavorable decision to review its decision based on new facts or changed circumstances. The motion must state new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying application or petition.
“New facts” means facts that have not been previously submitted in the proceeding. Also, the new facts must be relevant to the issues raised on motion. If the underlying application or petition was denied due to abandonment (for example, failure to respond on time to a request for evidence or a notice of intent to deny), the applicant/petitioner may file a motion to reopen and show that: 1.The requested evidence was not material; 2. The required initial evidence was submitted with the application or petition; 3. The request for appearance or additional evidence was complied with during the allotted period; or 4. The request for evidence or appearance was not sent to the address of record.
The applicant/petitioner may also file a motion to reconsider. This motion is a request to the office that issued the unfavorable decision to review its decision based on an incorrect application of law or policy. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision. The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions when filed and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision. Unlike a motion to reopen, new facts or evidence will not be considered in a motion to reconsider.