Managing Attorney
If you have gone through the employment-based immigration process only to have your petition denied, you still have hope. The United States Citizenship and Immigration Services (USCIS) has a process in place that allows petitioners to file an appeal when their initial employment-based petitions have been denied. In other words, you are given a second bite of the apple in cases where the USCIS denied your original petition. While there is no guarantee that the appeal will be successful, it does give you the opportunity to get your immigration petition granted. An experienced immigration attorney can work with you to guide you through the appeals process.
How do you appeal a denial?
All appeals of denials of immigration petitions are submitted to the Administrative Appeals Office (AAO). You have 30 calendar days from the date the USCIS officer denied your petition in order to file your appeal if you received the adverse decision by personal service. If the decision was received by mail, you have 33 days to file an appeal. The appeal is filed using Form I-290B, Notice of Appeal or Motion, and there is a $675 filing fee, although the fee will sometimes be waived in cases of financial hardship.
In general, only the petitioner (meaning your prospective employer) is empowered to file the appeal on your behalf. However, the petitioner (meaning the foreign worker) may file the appeal if an I-140 Immigration Petition was initially granted but subsequently revoked because a Form I-485 was never granted.
How does the appeal work?
After you file your appeal, the AAO will contact the USCIS field office that denied your petition. They will conduct an “initial field review” during which time they will reconsider your petition. This is basically a second look at the petition and supporting documents that were initially filed. It can take up to 45 days, after which the field office will either take favorable action by granting your petition or decide to not take favorable action, and refer the matter back to the AAO. If your appeal is referred back to the AAO, it will conduct an appellate review of your matter.
The AAO usually takes up to 180 days before rendering a decision. However, you can request expedited handling if you can show grounds for hardship or an emergency. While you are not required to file a brief with your appeal, it is a very good idea to have your immigration attorney prepare this document and file it as well. This is because the AAO conducts its review based solely on the documents provided by the petitioner, and will only grant a request for oral arguments in very rare cases. This is why it is crucial to have a strong documentary record and appellate brief prepared by your immigration attorney as part of your appeal.
What happens if the AAO denies my appeal?
When the AAO denies an appeal, the petitioner can still file a motion to reopen or a motion to reconsider. A motion to reopen is where the petitioner asks the USCIS to review its decision based on new facts that did not exist at the time of the adjudication. These must be facts that were not presented with the initial petition but are relevant to the decision. This would entail a showing that, based on the new facts, the beneficiary is entitled to the employment-based immigrant visa that had been previously denied.
Where a motion to reopen deals with facts, a motion to reconsider deals with law and USCIS policy. Here, the petitioner will have to show that the USCIS incorrectly applied the law or its policy in denying the petition. Since a motion to reconsider deals with issues of law, it is vital to have this prepared by an experienced immigration attorney.
In very rare cases, a denial of your appeal by the AAO can be appealed to the United States Court of Appeals for the Fifth Circuit. This has jurisdiction over all federal matters arising in the State of Texas. However, the grounds are very limited and the court will usually only hear cases where the petitioner can demonstrate that the USCIS engaged in unreasonable delays in adjudicating the petition or appeal.
If your petition for employment-based immigration has been denied, call our firm today. The experienced immigration attorneys at the Zepeda Law Firm, PLLC, can assist you if you are an employer or prospective employee whose petition for an employment-based immigration visa has been denied by the USCIS. We have successfully handled many appeals, and look forward to helping you get the results you desire.