In most cases when an immigration petition or application is denied or revoked by the United States Citizenship and Immigration Service (USCIS), an applicant may appeal that decision to a higher authority. In other words, the applicant or petitioner can ask a higher authority to review the denial. The Administrative Appeals Office (AAO) has jurisdiction over 47 different types of appeals. The Board of Immigration Appeals (BIA) has jurisdiction over the decisions of USCIS on family-based petitions, their revocation, and revalidation (except orphan petitions), waivers of inadmissibility for nonimmigrants under section 212(a)(d)(3)(A)(ii) of the Immigration and Nationality Act (INA), and generally, decisions rendered by Immigration Judges. When an applicant receives a denial notice, the denial notice will advise him or her of the right to appeal, the correct appellate authority (AAO or BIA), and provide the applicant with identification of the appropriate appeal form, deadline, and mailing instructions.
In addition to the right to appeal a denial, in many cases a motion to reopen or a motion to reconsider may be filed with the immigration office that made the unfavorable decision. By filing these motions, an applicant may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct filing fee within the timeframe required by the immigration regulations. Although you are not required to have an attorney represent you, an immigration attorney familiar with this process can be of valuable assistance.
If the AAO has jurisdiction over the denied application or petition, the notice of appeal, or motion reopen or motion to reconsider must be filed on Form I-290B (Notice of Appeal or Motion) within the specified deadline. The proper filing fee must be included, although a fee waiver may be available. Currently, the filing fee for the I-290B is $630. The appeal or motion must be filed at the address designated by USCIS's "Direct Filing Addresses for Form I-290B, Notice of Appeal or Motion." A brief (explanation) may be filed in support of the appeal. There is no appellate review of denials of extension of stay or change of nonimmigrant status. Only one appeal may be filed for each denial or revocation. Once a denial has been appealed, no additional review of the decision is generally available.
Only the person who submitted the original application or petition may file the appeal. The petitioner alone has standing to appeal the denial of a visa petition; the beneficiary of a visa petition may not appeal the decision. For example, if a United States employer filed an employment-based immigrant visa petition on behalf of an employee living abroad, only the United States employer may appeal the denial. The employee living abroad may not appeal the denial.
The person appealing the decision may be represented by an attorney or representative. If the petitioner is represented, the appeal must be accompanied by the proper form. The form must be signed by both the attorney or representative and the person who filed the original petition or application.
After review, the appellate authority may agree and change the original decision, disagree and affirm the original decision, or send the matter back to the originating office for further action.
The procedures for appealing to the BIA are different. If you need to file an appeal of a denial of an application/petition under the jurisdiction of the BIA (i.e., I-130, Petition for Alien Relative, I-360, Petitioner for Widow(er). and/or a decision rendered by the Immigration Court), we recommend that you immediately seek the assistance of an immigration attorney.
The Law Firm of Antone, Casagrande & Adwers, P.C. helps individuals and businesses worldwide with all of their US immigration needs including employment visas, obtaining green cards for business and corporate employees and family members, visas for doctors, nurses, therapists, and other health care workers, together with waivers for physicians under J visa training program, labor certifications (PERM), national interest waivers, marriage-based adjustments and green cards, fiancee visas, family immigration preferences, students, naturalization and citizenship, including medical waivers, asylum, deportation, hardship waivers, voluntary departure and removal. We serve clients in southeast Michigan including the Detroit Metro area, Ann Arbor, and Lansing. With offices in Farmington Hills, MI, we are close to Southfield, Troy, West Bloomfield, Birmingham, Novi, Rochester and Auburn Hills in Oakland County; Canton, Plymouth, Dearborn, and Detroit in Wayne County; Warren, Sterling Heights, and Mount Clemens in Macomb County; Brighton and Howell in Livingston County; Lansing in Ingham County; City of Monroe in Monroe County, Ann Arbor in Washtenaw County; Grand Rapids in Kent County; Battle Creek in Calhoun County; Kalamazoo in Kalamazoo County; Benton Harbor in Berrien County; Holland in Ottawa County; Flint in Genesee County; Ludington in Mason County; Muskegon in Muskegon County; and Traverse City in Grand Traverse County, Michigan. Although many of our clients are located in the tri-county area of Wayne, Oakland and Macomb, we also serve clients in many cities and states in the U.S. including Cleveland, Toledo and Cincinnati, Ohio; Chicago, Illinois; Milwaukee and Green Bay, Wisconsin; Indianapolis, Indiana; Buffalo, New York; Los Angeles, San Francisco and San Diego, California; Phoenix and Tucson, Arizona; Dallas, Houston, El Paso and Galveston, Texas; Miami, Florida; Washington D.C.; Virginia, Minnesota, Pittsburgh and Philadelphia, Pennsylvania, and many others. In addition to the United States, we also serve Canadian nationals from numerous provinces in Canada, including Toronto and Windsor in Ontario; Montreal in Quebec; Halifax in Nova Scotia; and Vancouver, British Columbia. We also serve cities and countries such as London, England; Scotland and other countries of the United Kingdom (U.K.); Mexico, Paris, France; Frankfurt and Berlin, Germany; Tokyo, Japan; India; Brazil; Rome, Italy; Shanghai and Beijing, China; Belgium; the Philippines, and many other countries in Europe, Asia and South America.