An immigration judge’s ruling may be challenged by either you or the government. The US Citizenship and Immigration Services (USCIS) immigration appeals process can be accomplished by filing a motion to reopen or a petition to reconsider in immigration court or by immediately appealing to the Board of Immigration Appeals BIA. The Board of Immigration Appeals is a team inside the Executive Office for Immigration Review (EOIR) that reviews immigration court decisions.
Motions to reopen a case are often made when one or both parties have new information to disclose that was not earlier available but are essential to the case. A motion to reopen generally must be submitted within 90 days after the final court ruling, although there are exceptions.
Motions to reconsider are normally due within 30 days following the court’s ruling, but exceptions can be made too. You may also file an appeal with the BIA directly as long as you do so within 30 days after the immigration court’s judgment.
If you receive a negative decision in your immigration case and face immigration court proceedings, or if the government proceeds to appeal a decision in your favor, the USCIS immigration appeals process will range from six months to several more years to complete in your case.
The existing backlog of cases in the system causes this lengthy process. There are other options for appealing a BIA decision via the federal appellate courts, which might add substantial time and cost to your case.
If you are considering the lengthy USCIS immigration appeals process, you should contact a knowledgeable New Jersey immigration attorney who has a successful law practice in immigration law. Andres Mejer, a well-known immigration advocate and top-rated New Jersey immigration attorney in NJ, has provided legal assistance to thousands of immigrants like you to resolve their immigration problems and obtain a green card.
Call his immigration law office now to set up a meeting to discuss your immigration case!
How Long Does a USCIS Immigration Appeals Process Take in the United States?
In the United States, an immigration appeal may take a month to a year to be resolved by an appellate court. The average time it takes to resolve an appeal is usually six months.
Remember that the time it takes an appellate court to decide on an appeal does not reflect the type of determination that will be rendered.
Processing Times of the USCIS Administrative Appeals Office (AAO)
The Administrative Appeals Office (AAO) performs an appellate review of immigration benefit claims within its jurisdiction. The rules for AAO appeals are found in 8 C.F.R. 103.3.
The AAO usually provides non-precedent rulings in its appeal decisions. Non-precedent rulings bind the parties to the case but do not establish or change USCIS policy or practice. USCIS may also “adopt” a non-precedent AAO judgment to give policy advice to USCIS workers in making decisions on immigration applications and petitions. Furthermore, with the approval of the Attorney General, the Secretary of Homeland Security may designate an AAO decision as a precedent. Employees of the Department of Homeland Security (DHS) must follow precedent rulings and offer information and guidance on the correct interpretation and application of immigration law and policy to the public.
There are two stages to the administrative appeals process: initial field review and Administrative Appeals Office appellate review.
- Initial Field Review: The office that gave the unfavorable judgment has 45 days to examine the appeal and decide whether it should take favorable action on the appeal. If that office does not make an affirmative action, the appeal will be sent to the Administrative Appeals Office. The appellant will then be sent a Notice of Transfer to the Administrative Appeals Office.
- Administrative Appeals Office Appellate Review: The AAO tries to complete its appellate review within 180 days of receiving a full case record following the initial field review. Because of factors outside the AAO’s control, some cases might take more than 180 days. For example, extra documentation may be required to complete the record, or perhaps the case might be more complicated and need more information.
Why is the USCIS Immigration Appeals Process Taking Long?
On October 11, 2019, the AAO issued an updated processing time chart that provides information on the timeliness of processing appeals. The report states that “in 2019, the Administrative Appeals Office had experienced an unanticipated spike in appeal filings, which resulted in a lot of delays in processing beyond the completion target of 180 days,” which is not surprising given the rise in USCIS rejections.
Information on the amount of time it takes AAO to decide an appeal is not included in their processing time reports. It publishes the percentage of completed appellate reviews finished inside 180 days, the AAO’s target for completing appellate reviews.
Also, after filing an appeal, USCIS has 45 days to review it and decide whether to overturn its original decision.
If USCIS does not change its original decision, the appeal is forwarded to the Administrative Appeals Office. It takes close to a year now for appeals for H-1B denials due to the USCIS’ initial review and the lengthier AAO appellate review period.
The USCIS Immigration Backlog
The current status of the USCIS backlog is approximately 5.2 million petitions for immigration benefits. On top of these requests, there are around 8.5 million pending requests. The pending immigrant petition is not yet ready for adjudication. Consequently, they are not currently in the backlog. In addition to the new applications received daily, USCIS has a backlog of around 13.7 petitions for immigration benefits.
With the intent of controlling the backlog and processing as many immigration benefit petitions as possible, USCIS intends to recruit 4000 more employees by the end of 2022. The cause of this enormous backlog is not COVID-19 and the resulting employee shortage. Adding additional employees to the USCIS payroll is improbable to solve the backlog problem. The main problem is USCIS funding, which is dependent on application fees.
If you have any concerns concerning the status of a pending immigration benefit request or immigration petition, Andres Mejer Law, a New Jersey immigration attorney, is ready to help you. He can address any of your immigration law concerns and provide information relevant to your case. He can help you file the appropriate documentation to expedite your request for an immigration benefit.
Will My Immigration Appeal Be Granted?
When your immigration appeal is decided, the Administrative Appeals Team (AAT) will send you a notice of approval or denial. If you are a student, you will most likely receive information on the approval or denial via the Student and Exchange Visitor Program. The notice may be delivered to your immigration attorney or your accredited representative on your behalf, and your attorney will notify you immediately.
Every year, up to 40,000 people prefer to appeal their cases in immigration court. There is no way to predict if your immigration appeal will be granted, but we can tell you whether it is likely or unlikely, based on the information and arguments contained in the appeals documents, if you visit us for a consultation and discuss any immigration law concern relevant to your case. Unfortunately, we cannot predict a specific outcome in any case since each case is unique, and some cases succeed in the appeals process while others do not.
Voluntary Departure versus Deportation
If you’re not a citizen of the US who’s been arrested by immigration officers, and it is evident that you do not have the right to stay in the country or any viable defense to deportation (removal), the next thing to ask is: what circumstances shall you be leaving the country? This is an essential question since it affects your ability to return legally to the United States someday.
Your two primary options for departing the United States will most likely be:
- A removal order, then deportation from the US by the government, or
- a voluntary departure grant wherein you will arrange your transportation back to your country of origin.
What Takes Place If You Receive a Removal Order From the United States?
A removal order signifies that a person has been judged to have no right to stay in the US. Following a hearing, a judge makes this decision usually.
The most probable reason is that this person is either inadmissible (falls into a group of individuals who cannot be allowed entry into the United States) or is deportable (falls under a group of individuals who have committed something that can cause this right to be revoked, despite probably having had the right to be in the United States, like a green card or visa; or who are in the United States without permission (illegal or undocumented).
If a judge orders this person to leave the country, Immigration and Customs Enforcement (ICE) must physically remove them from the country within 90 days or less from when the judge’s order turns final. (See § 241(a)(1)(A) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1231.) If this person is found to have committed certain crimes, they will be kept in detention for 90 days with no bond or any other kind of pre-removal condition for release.
After removal, this person will be unable to go back to the US (they will no longer be “admissible”) for some time. The length of inadmissibility is determined by the reason that person was deported. Most people are inadmissible for 10 years. However, the duration may vary from five (5) years to a permanent one (in the case of aggravated felons).
What Will Happen When a Voluntary Departure is Granted to a Person?
Voluntary departure will allow you to exit the US by yourself instead of under an order of removal. You must, however, make the request. You can seek a voluntary departure from the ICE if you are in communication with them (even before removal proceedings) or from the immigration judge at the start or finish of removal proceedings. It is classified as a discretionary form of relief, meaning that an applicant is not automatically entitled to it.
The law has qualifying requirements, including those convicted of specific crimes are not eligible for voluntary departure. If you are in court proceedings, it is easier to seek voluntary departure early on—wherein you give up every other conceivable path for relief than later. Even if you fulfill the fundamental conditions for voluntary departure, the immigration judge or officer may question whether you deserve it.
The most valuable aspect of voluntary departure may be obtaining the dignity of planning your exit without being forced to travel under the control of immigration agents. However, you must pay for your expenses, which generally begin with a bond to ensure that you will return home by the specified date.
Another seeming advantage of voluntary departure is that it does not trigger a period of inadmissibility based on a prior deportation order. However, if you have previously lived for one (1)or more years in the country illegally, you are subject to a different ground of inadmissibility, essentially barring your return to the United States for 10 years.
Surprisingly, if you obtain voluntary departure before one year of illegal presence, you will not be subject to the three-year prohibition on reentry that is usually imposed for more than 180 days of unlawful stay.
Talk to an Experienced New Jersey Immigration Lawyer Today!
Immigration law is a complicated legal area that often raises more questions than answers. If you have questions and need information about your current immigration status, a specific immigration law, an immigration benefit petition, or an immigration appeal, the legal team at Andres Mejer Law is here to offer you legal assistance.
Our immigration appeals, family law, or family immigration attorney has many years of legal practice and has provided legal services to numerous New Jersey clients with the USCIS immigration appeals process. For legal assistance with your immigration status, contact our law firm immediately. We will go through your case and discuss your options and other legal information that is relevant to your case.
You do not have to deal with this problem all by yourself. Allow our legal services to help you in protecting your rights and provide you representation.
What are you waiting for? Give us a call now!
