Appeal immigration decision

If you lose an case in immigration court or have had an immigration application denied, you may want to know how to appeal an immigration decision.

USCIS can approve or deny immigration applications. Although not all petitions can be appealed, depending on the case, you may have a greater chance of obtaining a positive result.

Our New Jersey immigration attorneys are at your service for any immigration matter. Call us to discuss your case and explore opportunities with your appeal request.

How To Appeal A US Immigration Decision In 2023

Are you wondering how to appeal an immigration decision? The vast majority of appeals are filed using Form I-290B, Notice of Appeal or Motion, although there are certain exceptions to this. Appeals of decisions on:

• Applications for special immigrant workers, for cancellation of temporary resident status and for legalization, are made through Form I-694 , Notice of Appeal of a Decision Under Sections 245A or 210 of the Immigration and Naturalization Act.
• Form I-130 , Petition for Alien Relative and other decisions appealed to the BIA are filed with Form EOIR-29, Notice of Appeal of a Decision of a DHS Officer to the Board of Immigration Appeals.
• Form N-400, Application for Naturalization is made on Form N-336, Request for Hearing on Decision in Naturalization Proceedings under Immigration and Nationality Law.

Notices of adverse decisions that can be appealed indicate what type of form you should use to appeal your case.

Benefits Of An Immigration Appeal

Appealing an immigration case decision brings with it multiple benefits, these are:

• A cancellation of removal. ICE will not be able to deport aliens while they have a pending BIA appeal.
• You will be able to argue your case before the Board of Immigration Appeals through a legal brief.
• If you have obtained a work permit while your case is pending before the Immigration Court (EOIR), you may be able to renew your work permit while your appeal case is pending.

If you have not obtained a work permit or are looking for one but do not have the necessary documents, we invite you to obtain more information on this topic in our article about how to get a job in the United States while being undocumented.

Who Can Appeal an immigration decision?

Only those who filed a petition with USCIS that has been denied can appeal. An example is that if an American citizen father petitions to bring his child to the US and the application is denied, it is the father the one who must appeal and not the child since it was the father who filed the application with USCIS.

The only exception to this situation is that the applicant and the beneficiary are the same person. VAWA visa applicants can apply for themselves as self-petitioners, so they can appeal if their application is denied.

Foreign workers eligible for Form I-140, Petition for an Immigrant Alien Worker, may, in some cases, file an appeal for themselves. 

How Long Do I Have To File An Appeal?

Immigration appeal applicants have up to 30 days from the decision date to file an appeal. A shorter time frame may apply in cases such as revocation of approval of a petition.

How Long Does An Immigration Appeal Take?

If, in addition to how to appeal an immigration decision, you wonder how long an immigration appeal takes? Currently, appeals at the BIA are taking approximately between a year and a half and two years. 

Although some cases may have a shorter term, as in the case of revocation of approval, which has a 15-day deadline. There are no extensions on the deadline.

Please note that if the decision is mailed, you will get an additional 3 days, so the dates would be:

• 33 days for denials.
• 18 days for revocations.

On the other hand, AAO takes less than 180 days to resolve an appeal. Although, cases may take longer if additional documents need to be submitted. 

How Long Does An Immigration Court Last?

If a person is detained, the immigration court may have a faster process. Typically, an individual’s case with an immigration judge can last 5-7 months.

What is exactly an Immigration Appeal?

An immigration appeal is a request made to an authority to review a decision in which you were rejected or denied. Appeals can be filed with the Administrative Appeals Office (AAO) or with the Board of Immigration Appeals (BIA). 

Appeals should not be confused with motions to reopen, they are related but different actions. It is also not the same as a motion to reconsider.

What Is The Difference Between An Appeal And A Motion?

The difference is that an appeal is a request to a different authority to review a decision, such as the BIA or AAO. While a motion is a request made to the USCIS office to review the decision.

Another notable difference between appeals and motions is that you may be eligible to file a motion in your case even if you are not eligible for an appeal.

The motion has two categories:

1. Motion to reopen. It is a request made to the office that issued the unfavorable decision to review the decision based on new facts.
2. Motion to reconsider. It is a request made to the office that issued the unfavorable decision to review the decision on the basis of an incorrect application of the law.

What Is The Board Of Immigration Appeals BIA?

To find out how to appeal an immigration case, the applicant and the immigration attorney must go to the Board of Immigration Appeals (BIA). This board is dedicated to reviewing all decisions of immigration judges.

The decisions of the Board of Appeals are intended to resolve judicial inconsistencies in immigration cases, correct judges who have made mistakes in immigration law or decide cases of great importance.

How To Bring An Immigration Case Before The BIA?

If you decide to appeal your case to the BIA, you must submit the appropriate forms and letters within the agreed time. If you don’t do this, you risk losing your chance to have your case reviewed. 

Note that:

• Appeals of decisions issued by immigration judges are submitted directly to the BIA through Form EOIR-26.
• Appeals of decisions issued by USCIS are sent to the immigration officer who has jurisdiction of the case through Form EOIR-29.

The BIA does not entertain any appeal that it deems unsubstantial, or that is filed for the sole reason of delaying a deportation order.

You may mail the appeal to the following address:

Board of Immigration Appeals

        Clerk’s Office

        5107 Leesburg Pike, Suite 2000

        Falls Church, VA 22041

What Happens After An Appeal?

After you file an appeal, it will be scheduled as soon as possible. You will receive notice of the hearing in the mail approximately 7 days before the due date. 

If you submitted the necessary documents and letters for the appeal, you may be able to obtain a favorable outcome. However, if your case is denied, you could be removed from the US.

How Do I Know If I Can Appeal A Denial Of An Application By USCIS?

Again, can an immigration decision be appealed? The short answer is yes. If USCIS denies a requested petition, it will state in the same document whether or not you can appeal. 

In addition, USCIS will inform you which documents you must use to file the appeal. It is not necessary to use all the forms, USCIS will indicate which one must be submitted.

Nor should you worry about what type of documents to fill out, in the petition denial notice it tells you what to fill out. The important thing is to attach documentation that explains with evidence why USCIS is wrong.

Denied Applications That Can Be Appealed

There are several types of petitions or denied applications that can be appealed. Some of these are:

• Application for adjustment of status.
• Petition for an immigration waiver.
• Petition to relatives.
• Temporary Protected Status (TPS).
• The process to obtain American citizenship.
• Petition for the K-1 visa of the fiancé(e) of a US citizen.
• Some work visas, such as:
  • EB-1 visa.
  • O visa.
  • R type visa.
  • EB-5.
• Other types of visas for victims of crimes or human trafficking, such as:
  • U visa.
  • T visa.

• Petitions for orphans.
• Petitions with Form I-131, Application for Travel Document.
• Denial of an immigration bond.

These are some of the types of immigration decisions that you can appeal. However, it is important to find the help of an immigration attorney to advise you. Latina attorney Carolina T. Curbelo can help you assess whether you may be eligible to appeal your immigration case or not.

Can Denied Visa applications Be Appealed At A Consulate?

Most types of American visas, such as: B-1 , B-2 , F-1 student visa, H-2A visa and others cannot be appealed if they are denied. The reason why a temporary visa cannot be appealed, is that if the consulate denies the visa, it is because the applicant intends to stay longer than necessary in the country.

This is misusing the visa that was granted to you for temporary purposes. To obtain more information regarding this, we invite you to visit our article “ How long can we stay in USA with a tourist visa”.

Ways To Determine If You Can Appeal an immigration decision

You already know that applications denied by USCIS can be appealed, as well as there are a few ways to determine if you can appeal against an order of removal from the US. These grounds for appeal are:

1# By Naturalization

If you are not a US citizen, but your parents or grandparents are US citizens, you may be eligible for naturalization. However, it is important that you:

• Do not have any aggravated felony on your record.
• Have not served more than 180 days in jail.
• Prove that you have had good moral character for the past 5 years.

2# For Cancellation Of Removal

If you have been a Green Card holder for at least 5 years and have resided in the US for 7 years and have not been convicted of any felony, you may be eligible to appeal for cancellation of removal.

It is also possible that you may be eligible for an appeal under the 212c waiver.

3# For Asylum

If you suffered or fear for your safety upon returning to your home country, you may be able to appeal based on your situation for the asylum process in the US.

4# Through A Refugee Waiver

Refugees who have never applied for adjustment of status to obtain a Green Card can apply for a refugee waiver if they have a criminal conviction. A statement of why they fled their home country and the risk they will face when deported must be included.

The waiver does not apply if the US government believes the applicant has been a criminal such as a drug trafficker or is a threat to US security. 

5# By Adjustment Of Status

Adjustment of status is a way to prevent deportation, as long as you show that you are admissible to the US and eligible to apply for adjustment. 

If you married a US citizen, have a US citizen child age 21 or older, or have a US citizen parent, your relative can help you with a family petition to adjust your status. 

6# Through The Waiver 212(H)

Section 212(h) of the INA allows exemptions for certain inadmissible offenses. To apply for a 212(h) waiver, you must show that if you are removed from the United States, it causes extreme hardship to your:

• Child
• Father or mother.
• Spouse.

These relatives of yours must be US citizens, plus you must not have any aggravated felony on your record.

Can I Appeal A Deportation?

If you are in removal proceedings, you can appeal your case and avoid being deported. If the immigration judge overlooked any type of evidence, testimony, or court proceeding, you may have legal grounds to appeal.

What Happens After I Receive A Deportation Order?

We remind you that you have 30 days from the issuance of a deportation order by an immigration judge to file an appeal with the BIA. If the appeals fail against you, the judge will issue an order of removal. 

What Is The Most Common Reason To Be Deported?

The most common reasons to be deported from the US include:

• Criminal convictions.
• Unauthorized or illegal presence.
• Staying illegally on a US tourist visa.
• Getting a Green Card for a marriage that occurred less than 2 years ago and then the marriage ended before the 2 years were up.
• Marriage fraud.

Do I Have To Pay To Appeal My Immigration Case decision?

Although in certain circumstances the BIA waives the required fee, you do have to pay in order to appeal an immigration case. Consult with attorney Carolina Curbelo to determine if you must pay to appeal or are eligible to have a BIA fee waived.

How Much Does An Immigration Appeal Cost? 

The fee to appeal the USCIS decision depends on the type of form you must file. As of the date of the article these are:

• Form EOIR-29: $110.
• Form N-336: $700.
• Form I-290B: $670.
• Form I-694: $890.

We remind you that in exceptional cases, USCIS may waive the payment.

Should I Hire An Attorney To Appeal My Immigration Case? 

Laws in the United States allow people to file an appeal on their own. In this article we have already seen how to appeal an immigration decision and everything necessary to do so has been presented.

However, all appeals to the Immigration Board require strong legal arguments validating your application. To do this, it is best to enlist the help of an immigration attorney with experience in deportations and/or appeals.

Our immigration law experts handle Board of Immigration Appeals appeals, removal proceedings, and post-conviction relief among many other legal branches.

If you are looking for quality advice, contact us today by calling, emailing or visiting our offices in person. Our offices are located in Ridgewood and Newark, New Jersey.