What is an Appeal?
An appeal is a request to a higher authority to review a decision. In the case of USCIS decisions, the USCIS Administrative Appeals Office or the Board of Immigration Appeals, an office in the U.S. Department of Justice, handles appeals. Your denial letter will inform you of the correct appeals office for your matter and whether you can appeal your visa decision.
Who Can Appeal a Visa Denial?
Typically, only the petitioner who applied may file a motion or an appeal to reconsider a visa application. If you are the beneficiary of a visa application but are not also the petitioner, you may not typically appeal a visa denial. You have 30 days from the date of the decision to file an appeal, and there is no available time extension.
Do I Have Any Other Options?
If you can’t appeal your decision, you may have some additional options, including a motion to reconsider, reopen, or reapply.
Motion to Reconsider or Reopen
A motion to reconsider is a request to the USCIS office that handled your application to review its decision based on its application of incorrect law or policy. Your motion should establish that the decision was incorrect based on the evidence in the record at the time. You can typically file a motion to reconsider even if your case isn’t eligible for an appeal.
A motion to reopen asks the USCIS office to reconsider its decision based on new facts. New facts are considered those that are relevant but were not part of the record previously. As part of your motion, you will need to include an affidavit or other documentary evidence proving you were eligible at the time of your application.
Post-denial motions and appeals can be challenging and take a great deal of time. The standard for most appeals is proving that USCIS incorrectly applied the law or ignored evidence in the application, and most appeals typically are not successful. Appeals can also be expensive from in terms of government filing fees and attorneys’ legal fees.
In some cases, it may be simpler to reapply for a visa at a later time. In some cases, you do not have the option to appeal, your case for reopen or reconsider is weak, and your only option is to refile the application. Except for 221(g) denials, you should submit a new application and new fee to reapply. With a 221(g) denial, you may be able to supplement the original application or include an item that was missing in the original application. If the agency found you ineligible under section 214(b) of the U.S. Immigration and Nationality Act, you did not qualify for a visa under your application category. In those cases, if you reapply you should present evidence of changes in your circumstances and qualification since your last application, or evidence that you failed to present in the last application.
If you face denial of a visa application, you should discuss your situation with an experienced immigration attorney. I’ve helped hundreds of individuals and couples worldwide navigate the path to U.S. residency and citizenship. I’d love to help you too.