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Denials and Appeals FAQ

POSTED IN Deportation BY Bureau of Citizenship and Immigration Services (previously INS) Comments

Q: Are there any time limits or requirements for appeals?

A: 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. If you desire to appeal the denial of a petition or application, the notice of appeal must be filed within 30 days of the date of the decision. If you receive the decision by mail, you must file the appeal within 33 days of the date of the decision. If you wish to appeal the revocation of an approved immigrant petition, you must file the appeal within 15 days of the date of the decision, or within 18 days of the date of the decision if the decision is received by mail.

Q: Is a denial under section 214(b) permanent?

A: No. The consular officer will reconsider a case if an applicant can show further convincing evidence of ties outside the United States. Your friend, relative or student should contact the embassy or consulate to find out about reapplication procedures. Unfortunately, some applicants will not qualify for a nonimmigrant visa, regardless of how many times they reapply, until their personal, professional, and financial circumstances change considerably.

Q: What can I do if my immigration application has been denied? Can I appeal?

A: Should a petition or application be denied or revoked by the Bureau of Citizenship and Immigration Services (previously INS) , in most cases you can appeal that decision to a higher authority. The Administrative Appeals Unit ("AAU") has jurisdiction over 40 different kinds of petitions and applications. If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction and provide you with the appropriate appeal form and time limit.
You should review the Form I-292 or "notice of denial" that accompanied the adverse decision to determine whether you may appeal the denial of your petition or application. The decision will inform you of the proper appellate jurisdiction and provide you with the correct form.
You may file a brief (explanation) in support of the appeal. After review, the appellate authority may:
- Agree with you and change the original decision
- Disagree with you and affirm the original decision
- Send the matter back to the original office for further action

Q: What can Visa Services in Washington do?

A: Visa Services does not exercise authority to change consular officers' decision on visa applications, but they can assist in finding out the status of an application. They can also suggest several different methods for getting the information addresses for letters, telexes, faxes, and, in emergency situations, cables. If you have some facts on an individual case, they can frequently explain the legal grounds for refusal and any possible avenues of relief, for example.

Q: What can you do if an acquaintance is refused a visa under 214(b) for lack of a residence abroad?

A: First, encourage your relative, friend or student to carefully review their situation and evaluate realistically their ties. You can suggest that they write down on paper what qualifying ties they think they have which may not have been evaluated at the time of their interview with the consular officer.
Also, if they have been refused, they should review what documents were submitted for the consul to consider. Applicants refused visas under section 214(b) may reapply for a visa. When they do, they will have to show further evidence of their ties or how their circumstances have changed since the time of the original application.
It may help to answer the following questions before reapplying:
- Did I explain my situation accurately?
- Did the consular officer overlook something?
- Is there any additional information I can present to establish my residence and strong ties abroad?
Your acquaintances should also bear in mind that they will be charged a nonrefundable application fee each time they apply for a visa, regardless of whether a visa is issued.

Q: What constitutes "strong ties"?

A: Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family and a bank account. "Ties" are the various aspects of your life that bind you to your country of residence: your possessions, employment and social and family relationships.
As a U.S. citizen or legal permanent resident, imagine your own ties in the United States. Would a consular office of a foreign country consider that you have a residence in the United States that you do not intend to abandon? It is likely that the answer would be "yes" if you have a job and a family, if you own or rent a house or apartment, or if you have other commitments that would require you to return to the United States at the conclusion of a visit abroad. Each person's situation is different.
Our consular officers are aware of this diversity. During the visa interview they look at each application individually and consider professional, social, cultural and other factors. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at the applicants specific intentions, family situations, and long-range plans and prospects within his or her country of residence. Each case is examined individually and is accorded every consideration under the law.

Q: What is a "motion to reopen" or a "motion to reconsider"?

A: 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 the Bureau of Citizenship and Immigration Services (previously INS) policy, and show 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.

Q: What is section 214(b)?

A: Section 214(b) is part of the Immigration and Nationality Act (INA). It states:
"Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status."

Q: Who can influence the consular officer to reverse a decision?

A: Immigration law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases. By regulation, the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts. The question at issue in such denials, whether an applicant possesses the required residence abroad, is a factual one. Therefore, it falls exclusively within the authority of consular officers at our Foreign Service posts to resolve. An applicant can influence the post to change a prior visa denial only through the presentation of new convincing evidence of strong ties.

Q: Who may appeal?

A: Only the person who submitted the original application or petition may file the appeal. The petitioner alone has 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.
The person appealing the decision may be represented by an attorney or representative. If you're represented, your appeal must be accompanied by a properly executed INS Form G-28 (Notice of Entry or Appearance as Attorney or Representative). The Form G-28 must be signed by both the attorney or representative and the person who filed the original petition or application.

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