If your application for an immigration benefit is denied, all may not be lost. The immigration system provides several avenues for challenging denials issued by USCIS or by an Immigration Judge. Most appeals are decided by the Board of Immigration Appeals (BIA), which reviews most decisions of an Immigration Judge as well as USCIS decisions denying a Petition for Alien Relative (Form I-130). The other principal appellate body is the Administrative Appeals Office (AAO), which reviews, among other matters, denials of applications for waivers of inadmissibility and denials of petitions for temporary workers. Not every denial can be appealed. A denied Application to Register Permanent Residence or Adjust Status (Form I-485) carries no right of appeal, as does a denied provisional unlawful presence waiver (Form I-601A), and decisions made by consular officers abroad are generally not subject to review. In those situations, a motion or a new filing is usually the only path forward.
Appeal deadlines are strict and are rarely forgiven. An appeal from an Immigration Judge’s decision to the BIA must be filed on Form EOIR-26 within 30 calendar days, and the Board measures that deadline by the date the appeal is actually received, not the date it was mailed. Appeals to the AAO are filed on Form I-290B within 30 days of service of the decision, or 33 days if the decision was mailed. In some circumstances a motion is the better remedy than an appeal — a motion to reopen, based on new facts or evidence, or a motion to reconsider, based on an error of law or fact. Here too the deadlines differ depending on where the case sits. Before the BIA, a motion to reopen must generally be filed within 90 days and a motion to reconsider within 30 days. Before USCIS and the AAO, both motions must be filed within 30 days. Choosing the wrong remedy, or filing it late, can end a case that had merit.
Once all administrative remedies have been exhausted, it may be possible to bring your case to federal court. A decision of the BIA may be challenged by filing a petition for review in the United States Court of Appeals for the circuit covering the immigration court that decided the case — for cases decided in Illinois, the Seventh Circuit — and that petition must be filed within 30 days of the BIA’s decision. It is important to understand that filing a petition for review does not by itself stop a removal from being carried out. A separate motion asking the court to stay removal must be filed, and the court decides that request based on the strength of the case and the harm removal would cause. Where warranted, a writ of mandamus may also be filed asking a federal court to order USCIS or another agency to act on a case that has been unreasonably delayed. Mandamus compels the agency to make a decision; it does not compel a favorable one, though in many cases a long-stalled application is simply waiting for someone to be required to look at it.
Attorney Marinov has successfully appealed decisions before the BIA and the AAO and has successfully pursued writ of mandamus actions in federal court. If your case has been denied, or has been sitting without a decision for an unreasonable length of time, contact Law Offices of Paul Marinov, P.C. to discuss whether an appeal, a motion, or an action in federal court is the right course. Because the deadlines are short and run from the date of the decision, it is best to call as soon as you receive it.
In many cases, yes. Whether an appeal is available — and to which body — depends on what was denied and who denied it. Some denials carry no right of appeal but may be challenged by a motion or in federal court.
The BIA is the highest administrative body interpreting and applying immigration law. It reviews most decisions of Immigration Judges and certain USCIS decisions, including denials of Petitions for Alien Relative (Form I-130).
The AAO is the USCIS appellate body that reviews a range of denials, including applications for waivers of inadmissibility and petitions for temporary workers.
Thirty calendar days from the date of the decision. The Notice of Appeal (Form EOIR-26) must actually be received by the Board within that period — mailing it on day 30 is not sufficient.
Generally 30 days from the decision, filed on Form I-290B. A slightly longer period may apply when the decision was mailed. Because the deadlines are unforgiving, it is best to act immediately.
A motion to reopen asks the adjudicator to look again based on new facts or new evidence. A motion to reconsider argues that the original decision was legally or factually incorrect based on the record as it stood.
You may file a petition for review in the United States Court of Appeals with jurisdiction over the immigration court that decided your case. For cases decided in Illinois, that is the Seventh Circuit.
Thirty days from the BIA’s decision. This deadline is jurisdictional and cannot be extended.
A timely filed appeal to the BIA generally stays removal while the appeal is pending. A petition for review to a federal appellate court does not automatically stay removal — a separate stay must be requested.
A federal court action asking the court to order a government agency to act on a case it has unreasonably failed to decide. It does not ask the court to grant the benefit — only to compel a decision.
There is no fixed rule. Courts consider the nature of the application, the agency’s published processing times, and the reasons for the delay. Delays well beyond normal processing times are the usual basis for a mandamus action.
Yes. After requesting a hearing on the denial before USCIS on Form N-336, an applicant may seek review in federal district court, which reviews the matter anew rather than deferring to the agency.
Based on our extensive immigration law experience, we offer all of our immigration services on a flat fee basis. Please contact our office to learn how much we charge for a specific service.
