The Administrative Appeals Process
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 USCIS's Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or Board of Immigration Appeals, 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" (a written explanation) in support of the appeal. After review, the appellate authority may 1) agree with you and change the original decision, 2) disagree with you and affirm the original decision, or 3) 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.
Who May Appeal?
Only the person that submitted the original application or petition may file the appeal. The petitioner alone has the legal right (or "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.
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Source: U.S. Citizenship and Immigration Services
