Administrative Appeals Office: How Do I Appeal the Denial of My Petition or Application?

Background

Should a petition or application be denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority. The Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. Please see 8 CFR § 103.1 (f)(3)(iii) for further information . If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or BIA), and provide you with the appropriate appeal form and time limit.

There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. You may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.

In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.

Where Can I Find the Law?

The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003), with one exception - petitions for approval of schools and the appeals of denials of such petitions are now the responsibility of Immigration and Customs Enforcement. There is no appellate review of denials of extension of stay or change of nonimmigrant status. Only one appeal may be filed for each denial or revocation; there is no appellate review of an appellate decision.

Who May Appeal?

Only the person that submitted the original application or petition may file the appeal. The petitioner alone has standing to appeal the denial of a visa petition. The beneficiary of a visa petition may not appeal the decision. For instance, if a United States employer petitioned for an immigrant visa for an employee living abroad, only the United States employer may appeal the denial. The employee living abroad may not appeal the denial.

The person appealing the decision may be represented by an attorney or representative. If the petitioner is represented, the appeal must be accompanied by a properly executed USCIS Form G-28 (Notice of Entry or Appearance as Attorney or Representative). The Form G-28 must be signed by both the attorney or representative and the person who filed the original petition or application.

How Do I Appeal?

You should review the Form I-292 or notice of denial that accompanied the adverse decision to determine whether you may appeal the denial of your petition or application. The decision will inform you of the proper appellate jurisdiction and provide you with the correct form.

If you desire to appeal the denial of a petition or application, the notice of appeal must be filed within 30 days of the date of the decision. If you receive the decision by mail, you must file the appeal within 33 days of the date of the decision. If you wish to appeal the revocation of an approved immigrant petition, you must file the appeal within 15 days of the date of the decision, or within 18 days of the date of the decision if the decision is received by mail.

If the Administrative Appeals Office has jurisdiction over the decision, the notice of appeal must be filed on Form I-290B (Notice of Appeal to the Administrative Appeal Office). The appeal must be filed with the office that made the original decision. A brief (explanation) may be filed in support of your appeal. The fee must be included. If you require a fee waiver, please see fee waiver request procedures, and the USCIS fee waiver policy memorandum. Forms are available by calling 1-800-870-3676, or by submitting a request through our forms by mail system.

Can Anyone Help Me?

If advice is needed, you may contact the USCIS District Office near your home for a list of community-based, non-profit organizations that may be able to assist you. The employees of these organizations are not USCIS employees. Please see our USCIS field offices home page for more information on contacting USCIS offices.

 

What Are the Processing Times on Appeals?

AAO Processing Times as of August 12, 2008
Case Type		Time
I – 140 EB1(A)	Alien with Extraordinary Ability	13 Months
I ­­­– 140 EB1(B)	Outstanding Professor or Researcher	Current
I – 140 EB1(C)	Multinational Manager or Executive	Current
I – 140 EB2	(D), (I) – National Interest Waiver	17 Months
I – 140 EB3	(E), (G) – Skilled, Professional, or Other Worker	14 Months
I – 687	Legalization Application for Temporary Residence	20 Months
I – 698	Legalization Adjustment Application	Current
I – 700	Special Agricultural Worker	Current
I – 526 EB5	Alien Entrepreneur	Current
I – 129 L	Nonimmigrant Intracompany Transferee	Current
I – 129 H1B	Nonimmigrant Specialty Occupation Worker	11 Months
I – 129 H2, H3	Temporary Nonimmigrant Worker	Current
I – 129 O	Nonimmigrant Extraordinary Ability Worker	12 Months
I – 129 F	Petition for Fiancée	Current
I – 129 P1, P2, P3	Athletes, Artists and Entertainers	17 Months
I – 129 Q	Cultural Exchange Visitor	Current
I – 360 EB4	Petition for Religious Worker	10 Months
I – 360 VAWA	Violence Against Women Act Petition	15 Months
I – 360 J	Special Immigrant Juvenile	Current
N – 470	Application to Preserve Residence	Current
N – 565	Replacement Naturalization/Citizenship Document	Current
N – 600	Certificate of Citizenship	Current
N – 643	Certificate of Citizenship for Adopted Child	Current
I – 600	Petition for Orphan	Current
I – 485	Cuban Adjustment Certification	Current
I – 612	Application for Waiver	Current
I – 821	Temporary Protected Status	Current
I – 212	Application to Reapply for Admission	10 Months
I – 601	Application for Waiver of Inadmissibility	24 Months
I – 131	Application for Travel Document	Current
I – 485	LIFE Act Adjustment Application	20 Months
I – 905	Application to Issue Cert for Health Care Workers	Current
I – 914	Application for T Nonimmigrant Status	Current