Understanding Instructions in Denial Letters
I find many people are confused by instructions found in USCIS denial Letters [and Department of State (DOS) Consular visa denials]. This is not surprising given that most people’s brains go into “overdrive” when they get a denial.
USCIS and Consulate language in denials are designed to let people
Right to Appeal and Right to File a MotionSome denials may be appealed. Not all denials may be appealed. Some denials are not appealable.
Denials of Form I-129 Petitions for nonimmigrant employment categories (e.g., H-1B, L-1 visas) and Form I-140 Petitions for immigrant employment-based permanent residence are appealable. The Form I-40 Petitioner may, also, file a Motion to reopen or Motion to Reconsider, in addition to making an appeal.
Appeals are also available for Form I-360 Petitions (e.g., special immigrants and VAWA applications). Appeals are available in cases of Forms I-600, I-821, I-526, and N-565.
Most other types of cases do not allow for appeals; however, many may be challenged by a motion to reopen or motion to reconsider.
For example, an Applicant may not appeal a Form I-485, Application to Adjust Status to Permanent Resident, denial. However, the Applicant may timely file a motion to reopen or motion to reconsider.
An appeal is a request to a different authority to review the denial. USCIS denials may be appealed to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice. The BIA and the AAO are administrative appellate entities that have jurisdiction over different types of immigration cases. The denial provides information about where to file an appeal.
A motion is a request to the USCIS office that issued the denial to review its decision. Generally, to reverse the denial one must show the USCIS officer made a mistake of law or mistake of fact.
A motion to reopen is based on new facts. The motion must state new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying application or petition.
A motion to reconsider is a request to the office that issued the unfavorable decision to review its decision based on an incorrect application of law or policy. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision.
Both appeals and motions have a USCIS filing fee of $675. The filing fee may be waived in certain circumstances.
Generally, you must file an appeal within 30 days from the date of the decision (not the date you received the decision). A shorter appeal period may apply to some cases.
Although some cases may take longer, USCIS field offices and service centers try to adjudicate motions within 90 days. The AAO strives to complete its review of motions within 180 days from the time it receives a complete case file. A BIA appeal may take longer than 180 days.
Possible Motion to Reopen or Reconsider if No Appeal AllowedA Form I-140 Petitioner may file an appeal or file a motion to reopen or reconsider. Generally, the USCIS denial letter advises the Petitioner of the right to appeal but does not advise the Petitioner of the option to file a motion to reopen or reconsider.
For a nonimmigrant petition (Form I-129), if the entire petition is denied, an appeal can be filed. However, if only the petition is approved, while an accompanying change or extension of status request is denied, this status portion of the petition typically can be challenged only by filing a motion.
Form I-485 denials state the decision cannot be appealed. This is not the same as stating that no challenge is possible. It is possible to overcome a Form I-485 denial through a motion to reopen or reconsider.
Standard Language Does Not Mean an Approval will be IssuedOften people interpret USCIS denial language that they may file an appeal or a motion as USCIS* invitation or recommendation to file the appeal or motion. Some people incorrectly interpret that USCIS* statement that they may appeal or file a motion as USCIS* willingness to approve the case in the event the appeal or motion is filed.
People who have received a denial sometimes are surprised to learn of options other than filing an appeal. In some cases, applicants and petitioners are better off re-filing a case rather than appealing or filing a motion to reconsider or reopen based on the current case.
In reality, an appeal or motion only succeeds if one establishes USCIS* decision was wrong.
In denials, USCIS is not prompting or requesting you file an appeal or motion, and it is not conceding its decision was wrong, and that one should file an appeal or motion. Again, generally, the language is included because it is required by law.
Same Concept Applies to Information About Waivers in Visa DenialThe same concept applies in cases of visa denials at U.S. Consulates concerning one*s option to file a waiver of inadmissibility. Generally, when the Consular Officer denies a visa based on his/her determination that the applicant is subject to a legal bar that does not permit entry to the United States, the standard language used by U.S. consulates notifies the visa applicant that s/he falls within a particular category of foreign nationals who are inadmissible to the United States. For some categories, the language advises that a waiver is needed for admission to be granted.
The waiver language is often misconstrued to mean that one need only file some additional form or request, and the visa will be granted.
The requirements for waivers depend upon the type of visa as well as the ground of inadmissibility. Certain types of waivers can be very difficult to obtain. To be granted a waiver of inadmissibility the applicant must meet the required standard of proof and establish favorable equities for the government to exercise the considerable discretion it has in these matters. Waivers are never routine or rubber-stamp matters.
The fact that the government has stated that a waiver is required neither indicates willingness on its part to grant such a waiver, nor even that one can meet the basic requirements for filing a waiver.
Seek Qualified AdviceImmigration and visa denials require careful analysis in light of the total circumstances, and an understanding of available alternatives.
Even if an appeal or a motion to reopen or reconsider is appropriate, there are tight timeframes involved.
One*s options to overcome an unfavorable government decision is not always limited to what is indicated on the decision as a legal right of the petitioner or applicant.
In fact, the options set forth in the denial by the government may not be viable, if the case was clearly deficient in some respect, and the government was correct in issuing the denial.
It is always advisable when faced with a denial, to consult a knowledgeable and experienced immigration attorney to establish the best possible courses of action as soon as the decision is issued.