Choosing an Immigration Appeal Lawyer
D’Alessio Law offers individualized legal representation to clients who’ve received an unfavorable decision and need an immigration appeal lawyer. The firm offers confidential consultations and world class service. Whether you need an experienced immigration appeal lawyer to help you fight an unfavorable decision or to litigate a complex immigration case, D’Alessio Law will help bring peace of mind.
If U.S. Citizenship and Immigration Services (USCIS) denied your immigrant visa petition or you’ve received an unfavorable decision in an immigration court, contact an immigration appeal lawyer without delay.
Denials are not uncommon when petitioning or applying for immigration benefits without the guidance of an attorney. Denials may also happen if you’re not completely upfront with your immigration attorney. An attorney with experience in immigration appeals and USCIS motions to reopen is your best chance.
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Common Immigration Appeal Lawyer Strategies
Strategies an immigration attorney may use to help you with an unfavorable decision may include one of the following approaches:
- Motion to reopen
- Motion to reconsider
- Administrative Appeals Office (AAO) immigration appeal
- Board of Immigration Appeals (BIA) immigration appeal
- Litigation
USCIS Motion to Reopen
If USCIS denies you petition, your attorney may file a motion to reopen, USCIS Form I-290B, Notice of Appeal or Motion. A motion to reopen is used when new facts and evidence are available. Usually, only a petitioner or applicant is allowed to file this form.
Exception: If you are the beneficiary of a Form I-140, Immigrant Petition for Alien Worker, and USCIS revoked your approved form, the agency may inform you that you are allowed to file a Form I-290B even as a beneficiary.
A USCIS motion to reopen asks the same authority that issued your denial to review your application or petition again based on the additional information. You won’t use this form if you need to appeal to a consular officer’s denial of your U.S. visa application. A motion to reopen is a choice for most unfavorable USCIS decisions.
USCIS Motion to Reconsider
Your immigration appeals lawyer may suggest a motion to reconsider if your denial did not follow the proper application of U.S. immigration law or USCIS policy.
By filing a motion to reconsider, your attorney will detail the reason for reconsideration (e.g., a statutory or regulatory reason, an established precedent, or USCIS policy).
Your attorney won’t submit new evidence or facts, they will only explain why the denial was not justified.
Motions to reconsider are filed using the same form as motions to reopen, USCIS Form I-290B.
Administrative Appeals Office (AAO) Immigration Appeal
The AAO has jurisdiction over about 50 different USCIS immigration petitions or applications and certain determinations issued by U.S. Immigration and Customs Enforcement. If your denial or unfavorable decision falls under the authority of the AAO, your attorney will file your appeal using the same form that is used to file motions: Form I-290B.
Your attorney may suggest appealing to the AAO if your case falls into one of the following categories:
- Nonimmigrant work visa petitions
- Employment-based immigrant visa petitions
- Temporary Protected Status applications
- Fiancé(e) petitions
- Waiver of inadmissibility applications
- Permission to reapply for admission to the U.S. after your removal
- Most special immigrant visa petitions
- Orphan petitions
- T visa applications
- U visa applications
- Certificate of citizenship applications
- Applications to preserve residence during naturalization
- Certain Immigration and Customs Enforcement actions
Please do not ever try to file an appeal without an experienced immigration attorney. Doing so could be disastrous for your immigration plans. The AAO uses a de novo review of all appeals. That means that the case will be looked at as though it is brand new. That can include new issues that were not previously examined by USCIS. In doing so, the AAO could find new reasons to uphold the denial of your application or petition. Consider that in fiscal year 2018, AAO only overturned denials in just 14 percent of appeals they reviewed. You need an attorney able to establish an airtight case in your favor.
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Board of Immigration Appeals (BIA) Immigration Appeal
The BIA and the AAO are separate entities used for appealing immigration cases. They each have jurisdiction over different types of cases. The BIA is within the Department of Justice’s Executive Office for Immigration Review (EOIR). Usually, you would appeal to the BIA if your unfavorable decision were made by an immigration judge during removal proceedings. It can also review USCIS denials of family-based immigrant visa petitions.
Decisions made by the BIA can be designated as legal precedent making them binding for immigration judges and the Department of Homeland Security. Typically, BIA decisions are final, but in some situations, your attorney may suggest appealing a BIA decision at the federal level.
Litigation of an Unfavorable Decision
Your immigration attorney may suggest litigation in federal court by employing the Administrative Procedure Act (APA) under certain circumstances.
The APA provides an outlet to sue a federal agency if there is no basis for relief found elsewhere.
This option is not always available. It’s also only available after the period for filing Form I-290B has passed.
Usually, in immigration related lawsuits, the plaintiff is the petitioner of an immigrant visa, and in some situations the beneficiary of the immigrant visa may be listed as well.
Reasons for litigation can include:
- Asking the court to remove the requirement of certain evidence that is not legally required in your particular visa classification
- USCIS’s decision was incorrect as a matter of law
Advantages to litigating over an appeal to the AAO include:
- The possibility that the government could offer to approve your petition if you are willing to dismiss your complaint
- The possibility that the court may order temporary relief to allow you to continue working in the United States until a decision is made in your lawsuit
Often, the neutrality of federal courts can produce a fairer decision that may be in your favor. A compassionate immigration attorney will explain the pros and cons of any options available to you, including the pros and cons of filing a lawsuit.
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Frequently Asked Questions
If your petition or application is denied, contact a skilled immigration attorney immediately. You must file your motion within 30 days of their decision. While some exceptions exist if the delay was out of your control, you must contact your attorney as soon as you can.
Under most circumstances, if USCIS revokes your approved Form I-140, you only have 15 days to appeal. Please do not delay contacting your attorney if you learn that your visa approval was revoked.
It is especially important that you secure an immigration appeal lawyer to fill out and file this form on your behalf. Deciding to appeal, file a motion to reopen, or file a motion to reconsider must be done only after completing a thorough evaluation of your circumstances. In some cases, an entirely different solution may be in your best interest.
Filing a Form I-290B doesn’t grant you permission to stay in the country. Your attorney can advise you if there may be another option that may allow your stay while you wait to hear the decision for your motion or appeal.
Choose an Immigration Attorney with Immigration Appeals Experience
D’Alessio Law’s experience includes providing expert representation to hundreds of prominent entertainment agencies, tech startups, entrepreneurs, and private companies. Plus, we’re committed to reuniting families using uniquely tailored family-based immigration services to help you navigate the intricacies and complexities of the U.S. immigration system. Request your free consultation today.
