An immigrant whose USCIS application is denied can appeal the decision to the Administrative Appeals Office (AAO). The AAO reviews specific immigration-related decisions issued by USCIS (United States Citizenship and Immigration Services), particularly those related to immigration petitions and benefits. This encompasses a wide range, from family-based to employment-based immigration petitions.
If you find yourself in a situation where your immigration application or petition has been denied, carefully examine the denial notice provided by USCIS. Understanding the grounds for the denial is essential. If you believe there are valid reasons to challenge the decision, seek the guidance of an immigration attorney. These cases have high stakes, and legal assistance can significantly affect the outcome.
Understanding AAO Appeals in U.S. Immigration
The AAO plays a vital role in scrutinizing determinations issued by USCIS officers. A diverse array of immigration applications and petitions, roughly fifty types, can be subject to appeal before the AAO.
These involve various cases, including:
- Non-immigrant and employment-based immigrant visa petitions.
- EB-5 immigrant investor petitions.
- K-1 fiancé (e) visa petitions.
- Orphan petitions.
- Temporary protected status applications.
- Certain special immigrant visa petitions.
- Applications for waivers of inadmissibility.
- Applications for certificates of naturalization and citizenship.
- Applications aimed at preserving residence for naturalization purposes.
- T visa applications for human trafficking victims, along with related adjustment of status applications.
- U visa petitions for victims of criminal activity and corresponding adjustment of status applications.
- ICE (Immigration and Customs Enforcement) determinations on breached surety bonds.
- Requests for permission to reapply for admission following removal or deportation (I-212 waiver).
However, it is imperative to understand certain constraints:
An immigrant cannot appeal a field office's rejection of an immigration benefit request. These rejections do not establish a filing date, and no merits-based decision is available for the AAO's review.
Decisions made by immigration judges during immigration court proceedings, including deportation orders and determinations made by officials within the DHS (Department of Homeland Security), do not fall within the purview of the AAO. In cases where appeals are permissible, they typically redirect to the Board of Immigration Appeals.
Note: The I-212 waiver, often referred to as "permission to reapply," is a formal request for permission to return to the United States after undergoing removal or deportation. This request is typically made by individuals who have been previously deported or removed from the U.S. and intend to reenter the country before their legally mandated waiting period has concluded.
Filling an Immigration Appeal
After USCIS denies an application, the next step involves receiving a formal denial letter explaining the decision's reasons. Crucially, if the decision can be appealed, this denial letter will offer guidance on initiating an appeal or pursuing a motion for reconsideration.
For most appeals directed to the AAO, applicants are expected to use U.S. Customs and Immigration Service Form I-290B. This standardized form is the preferred way to submit appeals. It offers a structured format for presenting the case and the grounds for the appeal. However, certain immigration categories have specific appeal requirements that differ from Form I-290B. Therefore, it is vital for immigrants to carefully review the denial letter and consult the AAO website for any category-specific instructions to ensure compliance with the appropriate appeal process.
An AAO appeal must meet a high standard of specificity. It requires explicitly identifying errors in law and facts made by the USCIS officer in the original decision. Immigrants and their legal representatives have two options for conveying this critical information:
- They can use a written statement attached to Form I-290B. This option provides flexibility in presenting the case, as no prescribed format exists.
- They can submit a legal brief outlining the arguments and grounds for the appeal.
Regardless of the chosen method, the appeal documentation should comprehensively cover all arguments and pertinent information the immigrant wants the AAO to consider during the appeal process. This also includes restating any arguments previously presented to the USCIS field office to ensure no crucial point is overlooked in pursuit of a favorable appeal outcome.
Filing an appeal with the AAO requires adherence to precise deadlines.
In most instances, appeals must be submitted within either 30 calendar days from the personal service of the decision or 33 calendar days if the decision arrives by mail. These periods include weekends and holidays, with counting commencing the day after USCIS mails the unfavorable decision.
Notably, if the final day for filing falls on a Saturday, Sunday, or a legal holiday, the deadline is automatically extended to the subsequent business day.
Specific USCIS petitions could have a briefer 15-day appeal period, as indicated in the denial letter issued by USCIS.
Strict adherence to these defined deadlines ensures the appeal remains within the designated time frame. Failure to do so could result in the appeal not being considered. Therefore, applicants must remain vigilant about the applicable deadline and promptly initiate the appeal process with the AAO.
Cost of Filing an Appeal With the AAO
The current fee for filing an appeal with the Administrative Appeals Office using U.S. Customs and Immigration Service Form I-290B is $675. This fee exclusively covers the appeal itself and does not include any charges associated with legal representation or assistance during the appeal process.
When individuals encounter financial difficulties and cannot afford the filing fee, an option exists to request an immigration appeal fee waiver. This can be accomplished by completing USCIS Form I-912.
The USCIS could grant a fee waiver in circumstances where:
- The immigrant or their spouse qualifies as the head of household receiving a means-tested government benefit.
- The household income of the immigrant falls at or below 150% of the Federal Poverty Guidelines.
- The immigrant can demonstrate another form of financial hardship.
All appeal applications must be submitted with the correct filing fee or a formal waiver request. The omission of the appropriate fee or fee waiver request could result in the rejection of the appeal. Consequently, it is essential for applicants to meticulously adhere to the fee guidelines when preparing their AAO appeals.
Always verify the revised fees on the official USCIS website for the most up-to-date information.
Do I Have the Right to Represent Myself in an AAO Appeal?
You have the option to represent yourself in an AAO (Administrative Appeals Office) appeal without the need to hire an attorney or legal representative. You can independently prepare and submit your appeal documents, which include Form I-290B and any accompanying materials.
However, AAO appeals have stringent rules and requirements that demand meticulous adherence. Furthermore, the AAO is bound by established USCIS decisions and court cases, necessitating thorough research and persuasive argumentation grounded in existing immigration laws and regulations.
Here are some key considerations:
- Adherence to procedural rules — AAO appeals must strictly adhere to specific procedural rules and deadlines. Deviations from these rules can lead to the rejection or dismissal of the appeal.
- Legal research — Comprehensive legal research is essential for identifying pertinent USCIS decisions, court cases, and statutory provisions that could impact your appeal. A deep understanding of how these precedents apply to your specific case is crucial.
- Effective argumentation — Constructing compelling arguments based on legal precedents and regulations is a cornerstone of a successful AAO appeal. This entails presenting a coherent and persuasive case to demonstrate why the initial USCIS decision was incorrect.
- Presentation of evidence — The collection and presentation of supporting evidence often play a pivotal role in AAO appeals. This evidence should directly address the issues raised in the denial and strengthen your arguments.
Considering the intricate nature and legal intricacies involved in AAO appeals, it is best to seek legal representation. This ensures that your appeal is meticulously prepared and effectively argued.
When selecting an attorney for your immigration case, it is best to follow these steps to ensure you are working with a qualified and trustworthy professional:
- Verify eligibility — Confirm that the attorney can practice law in any U.S. state, possession, territory, commonwealth, or the District of Columbia. They should hold active membership in the highest court's bar.
- Check for restrictions — Ensure that the attorney is not subject to any court order that limits their law practice. This step guarantees the attorney's professional integrity.
- Request licensing documentation — Ask to see the attorney's current licensing document and verify its authenticity through the relevant state agency responsible for attorney regulation. This verification ensures that the attorney is eligible to practice law and maintains good standing.
- Consult the list of currently disciplined practitioners — Refer to the List Of Currently Disciplined Practitioners, maintained by the Executive Office for Immigration Review (EOIR). This list contains information about individuals who have faced disciplinary actions, including expulsion, disbarment, or suspension from practicing law before USCIS. Ensure that the attorney you are considering is not on this list. If they claim to have been reinstated, request a copy of the reinstatement order from the EOIR.
Immigrants who lack the financial means to hire an attorney can seek affordable or free legal services through initiatives sponsored by their local bar associations. These programs are designed to extend legal support to individuals grappling with financial limitations, particularly those dealing with various legal issues, including immigration cases.
Bar associations, established as professional organizations of attorneys, often join forces with legal aid organizations, pro bono lawyers, and volunteer legal professionals. Together, they work to provide accessible legal services to underserved communities, ensuring that individuals in need can obtain essential legal assistance, including guidance on immigration matters.
Time the Administrative Appeals Office Appeal Takes
The AAO typically manages the majority of appeals, approximately 97%, within a six-month timeframe. However, certain exceptional cases could necessitate a more extended review period. This can arise when additional documentation is required or the case is intricate and requires a thorough examination.
Appeals are ordinarily processed in the order they are received. Nevertheless, in instances of urgency, individuals could seek expedited review of their cases.
To initiate expedited processing, the immigrant must furnish evidence demonstrating the applicability of one or more of the following circumstances:
- Severe financial loss — The appeal requester must substantiate that any delay in processing would lead to severe financial losses for either a company or an individual.
- Humanitarian situation — Documentation should illustrate a humanitarian situation of utmost urgency that demands prompt resolution.
- Extreme emergency — Evidence must be presented to establish the existence of an extreme emergency requiring immediate attention.
- USCIS handling error — If a USCIS handling error has resulted in an unreasonable delay, the appeal requester can request that the case be returned to its original order for resolution.
- Nonprofit organization — In cases involving nonprofit organizations, it must be demonstrated that expedited processing is essential to advance the cultural and social interests of the United States.
- Compelling USCIS interest — Establishing that the USCIS has a compelling interest in expediting the appeal based on specific circumstances.
- Government entity request — Officials at the Department of Defense or other U.S. government entities could initiate requests for expedited processing. These requests emphasize that a delay would be detrimental to the government.
The Appeal Process
The administrative appeals process is a two-stage procedure:
- Initial field review — During this stage, the office responsible for the unfavorable decision conducts a review, which can span up to 45 days. Here, the USCIS office assesses the appeal and decides whether to take favorable action for the immigrant.
- AAO appellate review — If the initial field review does not result in a favorable outcome, the appeal is forwarded to the Administrative Appeals Office. The immigrant is then issued a Notice of Transfer to the AAO. Following this, the AAO proceeds with an appellate review, which could extend up to 6 months or even longer. The time starts when it receives a complete case record after the initial field review.
Will I Need to Appear in Court in Person?
The AAO primarily conducts its reviews based on documents. However, there are specific situations where an oral argument can be requested:
Conditions for the Oral Argument Request
- The case addresses a matter of particular significance.
- The AAO recognizes the potential benefit of a supplementary argument.
How to Request an Oral Argument
To request an oral argument, you must submit a written request in either of the following ways:
- Alongside the filing of the appeal or motion to reconsider, either by the immigrant or their attorney/representative.
- When submitting a supporting brief.
Your request should provide a clear and written explanation detailing why you believe an oral argument is necessary. If the AAO approves your request, you will receive a notification specifying the time, date, location, and any specific conditions related to the oral argument.
Available Options Should the Administrative Appeals Office Deny Your Appeal
If you receive an unfavorable decision from the AAO, you do have some avenues for seeking further review:
- Motion to reopen — You can consider a motion to reopen, which involves presenting new documentary evidence not considered during the original appeal.
- Motion to reconsider — Alternatively, you can opt for a motion to reconsider, asserting that there was an incorrect application of law or policy in the initial decision.
In most cases, an unfavorable decision from the AAO cannot be appealed to any other body. However, a USCIS decision could be subject to appeal to a federal appellate court in extremely rare circumstances.
For Appeals in California
If you are in California, the United States Court of Appeals for the Ninth Circuit is the appropriate court to consider these cases. The Ninth Circuit will review various cases, including, but not limited to:
- Instances of unreasonable delays by the USCIS in processing your application or petition.
- Denials of your applications for naturalization by the USCIS.
Find a Los Angeles Immigration Attorney Near Me
Considering the services of the California Immigration Attorney is a wise choice when navigating the immigration appeal process. Our attorneys offer a wealth of practical knowledge, often boasting extensive experience handling numerous appeals and a deep understanding of the process's intricacies. Our familiarity with the terrain equips us to anticipate potential hurdles, craft effective strategies, and provide valuable insights to chart the most appropriate course of action for your unique case.
A standout advantage of engaging an immigration attorney is the personalized guidance. Immigration attorneys meticulously scrutinize the nuances of your situation, methodically identifying your case's strengths and weaknesses. This tailored approach enables us to provide customized advice and recommendations, significantly bolstering the chances of a successful appeal meticulously aligned with your circumstances.
Contact our team to unlock the array of benefits and access dedicated support. Our expertise and unwavering commitment to your case can prove invaluable as you navigate the complex immigration appeal process. Whether you are contending with USCIS, presenting your case before an immigration judge, or grappling with federal appellate court proceedings, our representation can substantially impact safeguarding your interests and advocating on your behalf.
Do not hesitate to contact our team for comprehensive assistance and an in-depth discussion about your specific scenario. Contact us today at 424-789-8809. We stand ready to furnish the guidance and backing you require to embark on a successful appeal journey and progress toward accomplishing your immigration objectives.