An immigration lawyer sees a wide variety of cases and outcomes, and unfortunately, some cases do get denied. In the case of an unfavorable decision, you may be able to appeal. An appeal is a request for a higher authority to review your decision in the hopes that they will overturn it. Let’s look at the aspects involved in potentially making an appeal.
Immigration Lawyer Breaks Down Your Appeal Options
Can your decision be appealed?
Not all immigration decisions are eligible for appeal. Read through the denial notice for further information about whether or not your case may be appealed and the likelihood of success on appeal. Remember that only the visa petitioner can file an appeal. For example, if you are the subject of a denied H-1B petition, or other employer-sponsored petition, your prospective employer is eligible to file the appeal, not you appellate attorney. In some cases, the appeal must be filed within 30 days from the date of the decision itself so it is imperative you speak with an immigration lawyer quickly to determine any appeal options.
Where can you file your appeal?
If you are eligible to file an appeal, refer to your denial notice to find out where you can file and what form you need to use. Your appeal may be filed with USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice. The BIA is the highest authority on interpreting and applying immigration law, and its decisions are typically binding. An immigration lawyer can help you decide whether there are grounds to appeal the adverse decision, the likelihood of success on appeal, and navigate the details of when and where to file an appeal.
File a motion to reopen or reconsider an unfavorable decision
You (or the person who petitioned on your behalf) may be able to file a motion to reopen or a motion to reconsider an unfavorable decision. A motion to reopen is based on fact. New evidence or circumstances may arise that could affect the original decision. The motion to reopen must be supported with a legal memorandum and supporting evidence. A motion to reconsider is based on legal arguments. These could be new arguments, or presented in addition to prior arguments. The goal is to show that the decision was incorrect at the time, based on the application of law. Both motions are reviewed by the original decision maker.
File a motion regarding a decision made on an appeal
In some cases, you can motion to reopen or reconsider an appeal which has been denied or dismissed. We suggest contacting an immigration lawyer in these situations, as these situation can be very complex. You will need to conduct thorough research and pull together a very clear case if you wish to prevail.