How to Appeal an Unfavorable Immigration Decision

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How to Appeal an Unfavorable Immigration Decision

Introduction 

It is common for individuals to get disheartened when the decision is not ruled in their favor. Most of the time, people think that they have fulfilled all the visa requirements and paid the correct fees, and even then, the immigration decision is not in their favor, so they want to appeal the decision. Typically you can appeal the immigration decision to the Administrative Appeals Office, which hears appeals against the USCIS decisions. In this article, we will explore the brief procedure for appealing the USCIS decisions. 

How will I check whether I am eligible to file an appeal or not? 

USCIS allows certain applicants to file an appeal if they think their rights are affected by the immigration decision and believe they have strong grounds to overturn a decision. A person or entity must have legal standing to appeal an unfavorable decision to the AAO. That is, you must be the affected party or representative of the affected party. Representatives may include

  • attorneys,
  • agencies (that may include a school that offers the exchange program), or
  • even the employer(sponsor) in case an employment visa is denied. 

According to USCIS regulations, a petitioner or applicant has legal standing before the AAO in an appeal, motion, or certification, whereas the beneficiary of a petition or another third party does not. Therefore, beneficiaries cannot file an appeal against an immigration decision. To appeal to the AAO, you have to file Form I-290B. Note that in certain applications such as EB-1, the petitioner and beneficiary are the same; therefore, the beneficiary/petitioner can file an appeal in those cases.

How to Appeal an Unfavorable Immigration Decision 1

What is Form I-290B?

Form I-290B (Notice of Appeal or Motion) is the legal document that must be submitted when filing an appeal or motion to a visa petition refusal or any deportation order. An appellant or the affected party must use Form I-290B to file appeals with the AAO.

Where can I file Form I-290B? 

One must not file Form I-290 directly with the Administrative Appeals Office. The AAO’s mailing address is for briefs and evidence supplementing a pending appeal and other correspondence related to existing matters. You can find the appropriate address for filing your appeal or motion at Direct Filing Addresses for Form I-290B, Notice of Appeal, or Motion. If you mail Form I-290B directly to the AAO, AAO will reject your form and return it as not properly filed. 

What is the filing fee for Form I-290B?

The filing fee for filing Form I-290B is $675. USCIS allows you to pay the fees with a money order, personal check, or cashier’s check. If you pay by check, you must make your check payable to the US Department of Homeland Security. When filing at a USCIS Lockbox facility, you may also pay by credit card using Form G-1450, Authorization for Credit Card Transactions. 

What is the time period for filing Form I-290B? 

You must positively file your appeal on Form I-290B within 30 calendar days after the personal service of the decision. If the decision is mailed, you can file the appeal within 33 calendar days. 

Appeal to the USCIS decision to revoke the approval of an immigrant petition upon notice must be filed within 15 calendar days after personal service of the decision, or 18 calendar days if the decision was mailed.

When computing the number of days, the USCIS counts every calendar day, including Saturdays, Sundays, and public holidays. The first day will be the day when USCIS has mailed the decision to the appellant. However, the last day should not be a Saturday, Sunday, or public holiday; otherwise, the last day would stretch to the next working day. 

Should I include a statement of my arguments and evidence as supporting documents for my appeal? 

Yes, if you have new evidence, you should include that with your appeal. Also, you should include a statement of reasons why you think that the previous immigration decision must be overturned.

On Form I-290B, you must indicate whether:

  • You have attached a brief or additional evidence
  • You will submit brief or additional evidence within 30 days; or 
  • You will not submit a supplemental brief or additional evidence.

If you have decided not to file a statement or brief, your appeal should identify any erroneous conclusion of law or fact in the previous immigration decision which you want to overturn. 

If the appellant elects not to file a brief, the appeal must otherwise specifically identify any erroneous conclusion of law or fact.

What are the common grounds for the rejection of an immigration appeal? 

The most common mistake people make that results in rejection of their immigration appeal is improperly filing the appeal with the AAO. In such cases, it is easy for the AAO to simply reject the appeals on the grounds that it is improperly filed. You must consult an immigration attorney if you have decided to file an immigration appeal. Immigration attorneys will help you complete your immigration case file, file proper fees, and provide all other expert help with which you are unfamiliar. The common grounds of rejections are- 

  • Untimely filed
  • Missing or incorrect filing fee
  • Case types that do not fall under the AAO’s jurisdiction, including appeals of AAO decisions
  • The party submitting the appeal does not have legal standing in the proceeding.
  • Form I-290B is not signed.
  • Form I-290B is signed by a representative, but there is no accompanying Form G‑28.

Conclusion 

If you think that you have grounds to overturn the initial adverse immigration decision, you can appeal against the decision by filing Form I-290B. If you want to take the help of immigration experts, you can contact the “Sethi and Mazaheri” law firm, which helps individuals in resolving their complex immigration cases. 

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Or simply fill out the form and one of our attorneys will get back to you pretty shortly.

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