When can I challenge the USCIS’s decision in my case?

Published: 02/19/2021

Source: yewlegal

If you have received a negative decision on an immigration petition, you may wonder if you have any right to appeal. Generally, you do have the right to appeal.

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There are several levels of appeal available:
  •     The U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO)
  •     The Board of Immigration Appeals (BIA)
  •     The federal courts, in some circumstances
The Administrative Procedure Act

In general, your ability to appeal depends on a law known as the Administrative Procedure Act, or APA. Under the APA, you can appeal most decisions made by the USCIS, such as denial or revocation of a visa, as long as you are the petitioner and the decision is final. In some cases, beneficiaries who are not petitioners can appeal revocations.

The APA allows appeals of federal agencies’ actions for three main reasons:
  •     The agency’s action does not comply with the agency’s own rules or procedures
  •     The agency’s action is “arbitrary and capricious,” meaning it has no rational basis
  •     The agency’s action exceeds its statutory or regulatory authority

Your immigration lawyer will work with you to select the most appropriate reason for your appeal.

Appeals to the Administrative Appeals Office or Board of Immigration Appeals

The AAO and BIA handle different types of immigration appeals.

When you appeal to the AAO or the BIA, the office of the USCIS that made the original decision will first review that decision and decide whether to grant you the relief you have requested. If it does not, the reviewing office will forward the appeal to the AAO or BIA for a new decision.

You generally have 30 days to appeal, although certain cases have a 15-day deadline. The letter notifying you of your denial will contain instructions about how to appeal. Once the appeal has been filed, the agency will try to get you a new decision within 180 days.

Subsequent appeals

If you are unsuccessful at the AAO or BIA level, you may be able to appeal to the federal courts. Your immigration attorney can explain when these further appeals are possible.

It is important to note that, if you have been ordered to leave the country, filing an appeal does not necessarily extend your departure date. You may have to leave while your appeal is ongoing.

If your immigration petition has been denied, contact Yew Immigration Law Group. Attorney Alison Yew is a board-certified specialist in immigration and naturalization law and can help with most immigration appeals.

Source: yewlegal
 
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