Administrative Appeals Lawyers

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 What is the Administrative Appeals Office?

The Administrative Appeals Office (or AAO) is the body to which someone can appeal an unfavorable immigration decision made by an office of the United States Citizenship and Immigration Services (USCIS).

What Types of Cases Does the AAO Hear?

The AAO has appellate jurisdiction over approximately 50 different immigration case types, as well as certain U.S. Immigration and Customs Enforcement (ICE) decisions. Not every type of denied immigration benefit request may be appealed. Some appeals are not made to the AAO because they fall under the jurisdiction of the Board of Immigration Appeals (BIA), part of the U.S. Department of Justice.

The following are some of the most common types of immigration cases that the AAO will hear:

  • Most employment-based immigrant and nonimmigrant petitions
  • Fiance(e) petitions
  • Religious worker petitions
  • Human trafficking or crime victim petitions
  • Applications for permission to reapply for admission after deportation
  • Orphan petitions and applications
  • Applications to preserve residence for naturalization purposes
  • Decisions by immigration service centers to revoke certain previously approved petitions
  • Immigrant petitions by alien entrepreneurs
  • Applications for Temporary Protected Status (TPS)

These cases may not be appealed to the AAO:

  • Rejected applications or petitions for immigration benefits (applications that were never accepted for processing). An application may have been rejected because you forgot to include the processing fee, for example.
  • Abandoned or withdrawn applications or petitions
  • AAO decisions are not appealable to the AAO. Instead, you would file a motion to reopen or a motion for reconsideration

Typically, appeals are non-precedent decisions, which means that the holdings are good only for that particular case (no new law is being made). After review by the U.S. Attorney General, the AAO may also issue precedent decisions to provide guidance to adjudicators on the proper interpretation of immigration law and policy.

How Do I Know if I Can Appeal a Decision?

If USCIS makes an unfavorable decision on your request for an immigration benefit, the office that issued the decision will send you a letter that explains the reason for the unfavorable decision and, if applicable, how to file an appeal. Note: if it was your employer who filed the immigration petition or application, it is the employer who will receive notice of the denial and instructions on whether an appeal is possible and, if so, how to complete the appeal.

Most appeals must be filed within 30 calendar days after personal service of the decision, or 33 calendar days if the decision was mailed. The AAO is strict about enforcing the date by which the appeal must be filed, so it is important to act quickly if you want to appeal.

How Long Does it Take to Process an Appeal?

The administrative appeals process has two stages: initial field review and AAO appellate review.

Initial field review: The office that issued the unfavorable decision has 45 days to evaluate the requested appeal. If that office disagrees with the reasons or evidence for the appeal, and does not take favorable action, it will forward the appeal to the AAO.

AAO appellate review: The AAO strives to complete its appellate review within 180 days from the time it receives a complete case record. Some cases may take longer than 180 days because they are particularly complex, or because additional evidence is needed to complete the analysis.

After hearing your case, AAO has the option of:

  • Agreeing with you and changing the original decision
  • Disagreeing with you and affirming the original decision
  • Sending your case back to the original office

What Should I Submit When I Appeal?

You will submit USCIS Form I-290B, the notice that you intend to appeal an unfavorable decision. You will also submit the filing fee of $675.00. The fee may be waived if you can show that you cannot afford to pay it.

The burden of proof is on you to prove by a “preponderance of the evidence” that you are entitled to the immigration benefit you seek, not on the USCIS to prove that you are not entitled to it. You cannot meet the burden of proof simply by claiming a fact to be true without supporting documentary evidence. For that reason, in support of your appeal, you may – and should – file a written brief (a written explanation).

An appeal must specifically identify any mistaken conclusion of law or statement of fact in the unfavorable decision. You must state any arguments you wish the AAO to consider on appeal, even if the arguments were previously raised in the original petition or application. You must provide any other documents that you wish to submit for consideration.

Are There Alternatives to Filing an Appeal?

In addition to, or instead of, filing an appeal with the AAO, you can file a motion to reopen or a motion to reconsider with the office that made the decision:

  • Motion to reopen – This applies when you have new evidence that was not available at the time you filed the original application for immigration benefits. You must state the new facts that will be introduced and you must provide affidavits or other documentation.
  • Motion to reconsider – This applies when you believe the USCIS office made a mistake in applying its own law. You must establish that the original decision was based on an incorrect application of law or USCIS policy. You must also establish that the decision was wrong based on the evidence existing at that time.

These two motions must be filed within 30 days of the original decision.

Who Can Appeal a Decision?

The person who submitted the application or petition may file an appeal. Only the petitioner may appeal. An employer who petitions for an alien worker must file the appeal if the original application is denied. The person filing the appeal may have a lawyer accompany him by filing Form G-28 (Notice of Entry or Appearance as Attorney or Representative).

How Can I Appeal?

Review the notice of denial that came with the adverse decision. From this, you can determine whether the denial of your petition can be appealed. You will be told where you can bring your appeal and you will be provided with the proper form.

When you should file depends on your situation:

  • You must file your notice of appeal within 30 days of the decision
  • If the decision is mailed to you, you must file within 33 days of the date of the decision
  • If an approved immigrant petition has been revoked, you have 15 days of the date of the decision to file your appeal (18 if the decision was mailed to you)

Do I Need A Lawyer If I Go Before an Immigration Appeals Court?

Immigration cases are complex. The regulations that govern the appeals process are written in legal-ese, and there are hundreds of regulations governing the appellate process. Missing a single required regulation can result in denial of the appeal. An immigration denial may well have a life-changing effect upon you and your family.

When you file the appeal, you will submit a written explanation (a “brief”) of why the underlying USCIS decision was wrong, and you must gather and submit any documentation you want the AAO to consider. An experienced immigration attorney is the best person to help you write the explanation you will submit, and to guide you in pulling together any documentary evidence.

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