REOPENING OR APPEALING DENIED IMMIGRATION CASE
If the USCIS denies an application or petition, it will send a denial notice to the applicant or petitioner explaining the reasons for the denial. The applicant or petitioner may appeal the decision to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). The denial notice will provide information about his appeal rights.
The applicant or petitioner, with certain exceptions, may also file a motion to reopen or reconsider. If there is no right to appeal, the applicant or petitioner may still file a motion with the USCIS. Also, where the option to appeal is available and the decision made on appeal is still unfavorable, a motion to reopen or reconsider may be filed.
In a visa petition case, the beneficiary cannot file an appeal or motion unless he is also the petitioner such as in the case of a VAWA self-petitioner, widow/er of a citizen, and other visa petitions where the beneficiary self-petitions.
When an applicant or petitioner files an appeal, he is requesting a higher authority of the original deciding office to review the decision due to the incorrect application of law or misinterpretation of pertinent facts of the case.
Generally, a decision denying a family-based petition is appealable to the BIA. The appeal is made on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer, and is filed with the office that originally made the decision. Most appeals, with certain exceptions, are made on Form I-290B, Notice of Appeal or Motion. The denial notice will provide instructions as to which form to use and where to file it.
When the applicant or petitioner appeals the decision to the AAO, the adjudicating officer who made the original decision will review the record. If the officer determines that reopening or reconsidering the case is not warranted, the case will be forwarded to the AAO or the BIA.
The appeal must be filed within the set period indicated in the denial notice which is generally 30 days from the date of the decision. A shorter period may apply to some cases. There is no extension for the set deadline.
A brief may be submitted with the appeal. The brief and other supporting evidence may be filed concurrently with the appeal. However, it may also be submitted after the appeal is filed. The applicant or petitioner is not required to submit a brief; however, he must provide an explanation as to why he believes the original decision was made in error. If the applicant or petitioner opts not to file a brief, failure to submit at least an explanation as to why the decision was made in error may result in the denial of the appeal.
When the applicant or petitioner files a motion to reconsider or reopen, he is requesting the adjudicating officer who originally made the decision to review it. A motion to reopen must be based on factual grounds such as the discovery of new evidence or changed circumstances and must be supported by affidavits and other documentary evidence. A motion to reconsider on the other hand must establish that the decision was incorrect based on an incorrect application of law and must be supported by pertinent precedent decisions.
Most motions are filed on Form I-290B, Notice of Appeal or Motion, generally, within 30 days from the date of the decision. Although a brief is not required, it may be filed with the motion. If not filed, the applicant or petitioner must provide a sufficient explanation as to why he believes the decision was made in error.
The USCIS tries to adjudicate motions within 90 days from receipt. If the motion is denied or dismissed, it may be appealed to the AAO. Although it may take longer, the AAO attempts to resolve appeals within six months from receipt.
In some cases, the USCIS can waive the fee for filing an appeal or motion as long as the fee for the underlying petition or application can also be waived.