Immigration Attorneys Helping You with Appeals of Visa Petition Denials in Cleveland and all of the US
When USCIS denies a visa petition (an I-130 or an I-140) the petition may appeal the denial. The visa petition is not the visa at the consulate. The visa petition is the request that USCIS qualify the relationship between the petitioner and the beneficiary under the Immigration and Nationality Act. For example, is the petitioner a U.S. employer and is the beneficiary a qualified H-1B candidate.
There are two avenues of appeals. The petitioner can appeal to the Board of Immigration Appeals (BIA). This is an administrative review. The BIA is limited in its scope of review. The petitioner may also appeal to a U.S. federal district court. This is a judicial review which is more expansive. Generally, this type of appeal includes arguments under the Administrative Procedures Act and also claims the USCIS violated constitutional rights of a party. Each path has its pros and cons. Each has filing deadlines. So if there is a denial, quick action is best. Be ready to provide the denial so we can review it.
A distinction exists. A consulate can ask USCIS to revoke a visa petition. This means an approval becomes a pending visa petition again. Courts are split as to whether or not they have the power to review the revocation. Challenging visa revocations is a newer area of immigration law. If you have a revocation of a visa petition, call us immediately.
We see a lot of marriage fraud denials. Marriage fraud denials must be appealed or the law bars the government from granting a future visa petition for the non-citizen. This is called the 204(c) bar. We also see a lot of Adam Walsh Act denials. We prefer to take both types of cases to federal court because we believe the federal court judges will give us the best chance at winning.
Appeals of Adjustment of Status Denials
When USCIS denies an adjustment of status application (Form I-485), most of the time the non-citizen does not have any underlying status. This means they are subject to removal proceedings. Most of the time non-citizens can renew their adjustment applications in front of the immigration judge in removal proceedings. There are some times where DHS “exercises their discretion” and does not start removal proceedings. There are also times where the non-citizen was still in H-1B or L status when the denial occurred meaning they have an underlying status. When these two instances occur, the non-citizen may be eligible to file an appeal with the federal court. Call us to determine if you’re eligible for this type of appeal.
Appeals of Deportation or Removal Orders
When an immigration judge orders deportation (cases started before 1997) or removal (cases started after 1997), the non-citizen may appeal that decision to the Board of Immigration Appeals (BIA). The BIA must receive the notice of appeal within thirty days of the date of the order. The BIA reviews all aspects of the deportation case or removal proceedings and determines if the immigration judge made any errors that prejudiced the final outcome. The mere filing of the notice of appeal stops ICE from executing the deportation or removal order. Please be prepared to provide a copy of the immigration judge’s decision so we can review it. Please call us immediately upon receiving the order from the immigration judge.
Appeals of BIA Denials on Deportation or Removal Orders
If the BIA denied an appeal of a deportation order or a removal order many times the non-citizen can appeal to the Circuit Court of Appeals. This is called a Petition for Review (PFR). There is a thirty-day deadline. There is no automatic stay of deportation or removal by merely filing. The advocate or non-citizen must file a Motion for Stay of Removal along with the PFR to keep ICE from executing the order.
Appeals of Naturalization Denials
For practitioners, these are fun. When USCIS denies an N-400 Application for Naturalization, the non-citizen can appeal using Form N-336. USCIS must set a hearing. This is a hearing where the non-citizen can call witnesses and cross-examine the government’s witnesses. If USCIS denies the N-336, then the non-citizen can appeal to the federal district court. At this level, the federal district judge conducts the proceedings de novo; meaning he or she starts from the beginning. The non-citizen also can ask for a trial. USCIS becomes the Defendant and many times their attorneys tell them to settle the case because they denied it in error. When USCIS remains stubborn, a trial can be an effective tactic. Please call us if USCIS denied your N-400 Naturalization Application.