When And How To Appeal Against The USCIS

December 5, 2022

When And How To Appeal Against The USCIS

Appeal Against The USCIS – An appeal is a procedure used in law where parties ask for a formal revision of an official decision and cases are examined by a higher authority. An intended immigrant may appeal a denial of their application to the Administrative Appeals Office after submitting it to the U.S. Citizenship and Immigration Services (USCIS) (AAO). About 50 different forms of immigration petitions and applications are reviewed by the AAO. These comprise the majority of non-immigrant visa requests based on employment and the ability to reapply for admission to the United States following deportation (I-212 waiver). AAO appeals must be submitted within 30 days after the decision-making by the USCIS officer. Appeals are typically resolved in six months, but can occasionally take longer. In cases of hardship or exigencies, expedited appeals may be possible. The cost to file an appeal with the Administrative Appeals Office is $675. Immigrants who cannot afford the fee may be able to get a fee waiver.

1. What immigration matters can be appealed to the Administrative Appeals Office?

The Administrative Appeals Office (AAO) reviews determinations made by U.S. Citizenship and Immigration Services (USCIS) officers. There are approximately fifty different types of immigration applications and petitions that can be appealed to the AAO, including:

Most employment-based immigrant and non-immigrant visa petitions.
EB-5 immigrant investor petitions.
Temporary Protected Status applications.
K-1 Fiancé(e) visa petitions.
Applications for a waiver of inadmissibility.
Applications for permission to reapply for admission after removal / deportation (I-212 waiver);
Certain special immigrant visa petitions.
Orphan petitions.
T visa applications for victims of human trafficking and related adjustment of status application.
U visa petitions for victims of criminal activity and related adjustment of status application.
Applications for certificates of naturalization and citizenship.
Applications to preserve residence for naturalization purposes.
Immigration and Customs Enforcement (ICE) determinations that a surety bond has been breached.

An immigrant may not appeal a field office’s rejection of an immigration benefit request. When USCIS rejects an immigration benefit request, it does not retain a filing date and there is no merits-based decision for the AAO to review.

2. How do I file an AAO appeal?

When the USCIS denies an application, the agency sends a letter to the immigrant explaining the reason(s) for the denial. If the decision is one that can be appealed, the letter will contain information on how to file an appeal or a motion for reconsideration.

Most appeals must be filed on U.S. Customs and Immigration Service Form I-290B.

However, some immigration categories have different appeal requirements, so the immigrant should review the denial letter and the AAO website carefully.

An appeal to the AAO must specifically set forth errors of law or fact made by the USCIS officer.

The immigrant or his/her attorney may provide this information in:

A written statement attached to Form I-290B (no special format required), and/or
In a legal brief.

The statement and/or brief must include all arguments the alien wishes the AAO to consider on appeal — even if he/she previously made the same arguments to the USCIS field office.

3. How long do I have to file an immigration appeal?

Most appeals to the AAO must be filed within:

30 calendar days after personal service of the decision, or
33 calendar days if the decision was mailed.

Because these are calendar days, Saturdays, Sundays, and legal holidays count. Begin counting with the first calendar day after the date on which USCIS mailed the unfavorable decision.

4. How much does it cost to appeal to the Administrative Appeals Office?

The current cost to file most AAO appeals is $675. This fee does not include any fees paid to a lawyer or other representative.

If the immigrant cannot afford the filing fee, he or she can request an immigration appeal fee waiver using USCIS Form I-912.

USCIS may grant a fee waiver if:

The immigrant or his/her spouse is a head of household receiving a means-tested government benefit;
The immigrant’s household income is at or below 150% of the Federal Poverty Guidelines; or
The alien has another financial hardship.

All appeal applications must contain the proper filing fee or a fee waiver request or the appeal will be rejected.

USCIS periodically changes its fees. For the most up-to-date listing please see the USCIS fee schedule.

5. How long does an AAO appeal take?

According to the AAO, 97% of appeals are completed within 6 months.But some cases may take longer. For instance, the AAO may require additional documentation or the case may be more complex and require additional review.

Appeals are generally considered in the order in which they are received. In an emergency situation, however, an immigrant may be able to get an expedited review of his or her case.

To request expedited processing, the immigrant must provide evidence that one or more of the following applies:

Delay would cause severe financial loss to a company or individual;
There is an extreme emergency situation;
There is a humanitarian situation;
A USCIS handling error created an unreasonable delay that may be fixed by placing the case back in its original order;
A nonprofit organization is requesting the expedited processing in order to further the cultural and social interests of the United States;
An official at the Department of Defense or other United States government entity requests the expedited processing because a delay will be detrimental to the government; or
The USCIS has a compelling interest in expediting the appeal.

6. What is the process for the Administrative Appeals Office?

The administrative appeals process has two stages:

The initial field review, and
If necessary, the AAO appellate review.

First, the office that issued the unfavorable decision will conduct an “initial field review: This can take up to 45 days. During the initial field review, the USCIS office will evaluate the appeal and determine whether to take action favorable to the immigrant.

If the office decides not to take favorable action, it will forward the appeal to the AAO. The immigrant will then be sent a Notice of Transfer to the AAO.

The AAO will then conduct an appellate review. This can take up to 6 months (or longer) from the time it receives a complete case record after the initial field review.

7. Will I need to argue my case in person?

The Administrative Appeals Office generally conducts its review based solely on documents. However, the AAO may grant a written request for an oral argument where the request for argument satisfies the AAO why this argument is necessary.

8. What can I do if the AAO denies my appeal?

An immigrant who loses an appeal to the AAO may be able to file a motion to reopen the case or a motion to reconsider the decision. A motion to reopen is based on documentary evidence of new facts. And a motion to reconsider is based on a claim of an incorrect application of law or policy.

An immigrant generally may not appeal an unfavorable AAO decision to any other body. However, in very rare cases, a USCIS decision can be appealed to a federal appellate court. Attorney Raju Mahajan & Associates has been trying to assist individuals in filing appeals against immigration related cases. Our immigration law office provides numerous legal services, including online consultations, which you can have access from any part of the world.

To learn more about motion, click here.