If your petition or application is denied or revoked by the U.S. Citizenship and Immigration Services (USCIS), in most cases you may appeal that decision to a higher authority. The Administrative Appeals Unit (“AAU”) has jurisdiction over 40 petitions and applications (see 8 CFR 103.1 (f)(3)(iii)). If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (Administrative Appeals Unit or Board of Immigration Appeals), and provide you with the appropriate appeal form and time limit.
There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. You may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.
In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you 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 USCIS (formerly INS) 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 fee within 30 days of the decision.
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; there is no appellate review of an appellate decision.
Who may appeal?
Only the person that 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 instance, if a United States employer petitioned for an immigrant visa for 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 a properly executed USCIS Form G-28 (Notice of Entry or Appearance as Attorney or Representative). The Form G-28 must be signed by both the attorney or representative and the person who filed the original petition or application.
How Do I Appeal?
You should review the Form I-292 or notice of denial that accompanied the adverse decision to determine whether you may appeal the denial of your petition or application. The decision will inform you of the proper appellate jurisdiction and provide you with the correct form.
If you desire to appeal the denial of a petition or application, the notice of appeal must be filed within 30 days of the date of the decision. If you receive the decision by mail, you must file the appeal within 33 days of the date of the decision. If you wish to appeal the revocation of an approved immigrant petition, you must file the appeal within 15 days of the date of the decision, or within 18 days of the date of the decision if the decision is received by mail.
If the Administrative Appeals Unit has jurisdiction over the decision, the notice of appeal must be filed on Form I-290B (Notice of Appeal to the Administrative Appeal Unit). The appeal must be filed with the office that made the original decision. A brief (explanation) may be filed in support of your appeal. The fee must be included.
