Appealing for Motion on an Unfavorable Decision
Immigration officials occasionally make unfavorable decisions since they aren’t flawless. In essence, filing an appeal for a motion on an unfavorable decision is a mechanism to petition a higher authority to review a case and decide if the unfavorable action was justified. There are several ways to appeal an unfavorable decision in United States immigration. This article will walk you through the usual immigration court hearings, offer you tips on what to expect, and explain when a final decision is expected.
Immigration appeals differ from the criminal court appeals you watch on television, so it’s generally a good idea to have an immigration appeals attorney to complete and file the necessary documentation for you. Additionally, handling immigration cases can be extremely challenging. For this reason, a lot of people decide to work through their situations with the help of a lawyer.
What are the frequently asked questions regarding immigration appeals?
It makes sense that you would have concerns if you received an unfavorable decision in your case. These are some of the typical examples (along with their answers).
Can I appeal for an unfavorable USCIS decision?
Yes, you could be eligible to submit an appeal or motion in response to an unfavorable decision.
An appeal is a request to have an unfavorable decision made by another authority re-examined. Certain USCIS decisions are appealable to either the USCIS Administrative Appeals Office or the Department of Justice’s Board of Immigration Appeals (BIA) (AAO). The BIA and the AAO, administrative appellate division, have jurisdiction over many immigration disputes. Your denial notice specifies whether you may appeal the judgment as well as where you must file your appeal.
Remember that there are some circumstances where you are and are not appealable.
So here are the following cases you must note before filing for an unfavorable decision:
- A motion demands that the USCIS office reconsiders the unfavorable decision.
- If you have obtained an adverse decision in your case, you may, with some conditions, submit a request to reopen or a motion to reconsider.
- You may still submit a motion even if your appeals case is not appealable.
My petition for a visa was rejected or revoked, and I am the beneficiary. Am I allowed to submit an appeal?
An appeal or motion to reconsider a denied or revoked visa petition is frequently submitted only by the appellate court. If you are the beneficiary, you usually cannot file an appeal or motion unless you are also a VAWA self-petitioner, the widow(er) of a US citizen, or otherwise qualified to file a visa petition, such as Form I-140, Immigrant Petition for Alien Worker.
The following prerequisites must be satisfied before you can submit an appeal or motion:
- You had a Form I-140 that was authorized but later canceled by USCIS;
- You submitted a Form I-485 in reliance on a legitimate Form I-140, and the Form I-485 has been delayed for at least three months;
- You requested job portability by submitting a Form I-485 Supplement J after January 17, 2017, or you did so by sending an approved form of written communication prior to that date.
- USCIS granted your request for portability.
If you fall under the last three of the aforementioned requirements, you may proceed to respond to the Notice of Intent to Revoke with supporting documentary evidence.
What will happen after I appeal to the AAO?
Before sending your appeal to the AAO, the USCIS office that made the original decision will first take it into consideration to come up with a final judgment and determine whether to take positive action and offer the requested immigration benefit. The reviewing office has two options: it can allow the application or petition by accepting the timely appeal as a motion to reopen or reconsider, or it can send the appeal and the related record of events to the AAO, who will then issue a new ruling during this “initial field review.”
A decision in your case cannot be postponed by submitting an appeal, and the departure date cannot be changed once it has been determined.
Is Filing an Immigration Appeal Simple?
Immigration appeals differ from the court proceedings you have seen on television. In reality, they are primarily administrative and frequently just exist on paper. You might need to consult with an experienced immigration attorney because filing an immigration appeal could be stressful and difficult.
How can I submit an appeal?
There are few exceptions to the rule that the majority of the appeals must submit through Form I-290B, also known as the Notice of Appeal or Motion:
- Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336, is used to proceed to an appellate procedure issued on N-400, Applications for Naturalization.
- Form I-694, Notice of Appeal of Decision Under Sections 210 or 245A of the Immigration and Nationality Act, is used to appeal decisions on special immigrant worker applications, citizenship applications, and removal of a valid temporary resident status.
- On Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer, the office that issued a decision on the petition is where the final judgment on an I-130, Petition for Alien Relative, or other decisions that are appealed to the BIA is filed.
Once you are told of an adverse decision that can be appealed, you will be given information on the proper court forms to use.
How long do I have to submit an immigration appeal?
In most circumstances, you have approximately 1 month starting from the day you get an unfavorable decision to file an immigration appeal. Longer delays could result in the entire loss of your right to appeal. But there are some exceptions, and your lawyer can help determine if you meet the requirements.
Who evaluates appeals for immigration?
The immigration judge or official who originally issued the decision will not reevaluate it after you file an immigration appeal. The following higher authority makes the decision in your case. Only the Administrative Appeals Office and the Board of Immigration Appeals of the United States Citizenship and Immigration Offices, collectively known as AAO and BIA, Office of Justice, respectively, have the authority to review immigration appeals.
Can I ask for a fee waiver for my appeal filing?
According to DHS regulations, 8 CFR 103.7(c), there are some circumstances in which USCIS may waive a filing fee due to financial hardship. USCIS may also waive the filing fee for the motion if it is eligible to waive the filing fee or if there isn’t any fee at all.
What are the reopen and reconsideration motions through the AAO?
There are two options to request a different outcome following an appeal: motions to reopen the case or to reconsider the matter. This case is handled by the same authority that made the most recent ruling decision rather than the appeals court. An attorney may file either one (or both) while keeping in mind:
- There must be new facts in a case in order to use a request to reopen. You must offer new evidence; you cannot simply resubmit outdated information.
- If you and your counsel feel that the AAO based a prior decision on “an erroneous application of law or policy” at the time the judge reached the decision, you may make a move to reconsider.
Contact our New Jersey Immigration Attorney Now!
You might be qualified to pursue an appeal if USCIS, DHS, or an immigration judge issues an unfavorable decision. Consult the top Immigration Lawyer Immigrants Trust in Eatontown, New Jersey who can assist you in moving forward.
No matter where you are in the world, Andrew Mejer Law can help you legally immigrate to the United States or help to solve your immigration problems if you are already here. Contact us today to discuss your case!