- Are there any time limits or requirements for immigration-related appeals?
- Is a denial under section 214(b) permanent?
Q: Are there any time limits or requirements for immigration-related appeals?
- A: Strict deadlines must be met in order to properly file an appeal, whether your case is before U.S. Citizenship and Immigration Services (USCIS), the immigration court (EOIR), or some other related entity. The appeal must be filed with the correct fee, sometimes (but not always) at the office that made the original decision. You will ordinarily receive detailed instructions along with your notice of denial.
Q: Is a visa denial under Section 214(b) of the Immigration and Nationality Act (I.N.A.) permanent?
- A: No. A denial under this section of U.S. immigration law means that the consular officer considering a foreign national's application for a temporary ("nonimmigrant") visa to the U.S. wasn't convinced that the applicant would return to the U.S. at the end of his or her permitted stay there. The officer may, however, reconsider the case if the applicant can show further convincing evidence of ties outside the United States. Contact the embassy or consulate to find out about reapplication procedures. Unfortunately, some applicants will not succeed in making their case for a nonimmigrant visa regardless of how many times they reapply, unless and until their personal, professional, and financial circumstances change considerably. If, for example, the person doesn't seem to have the financial means to stay in the U.S. without working, and doesn't have a job to go back to, the officer is likely to worry that the true intent is to find work in the United States.
Q: What can I do if USCIS denies my immigration application? Can I appeal?
- A: When U.S. Citizenship and Immigration Services (USCIS) denies a petition or application, you often have two options: either to simply start from scratch and file a new application (and fee), or to appeal that decision to a higher authority within the government bureaucracy. Starting over offers some advantages, in that you're hopefully able to cure what was wrong with the original application rather than arguing over whether denying that application was inappropriate.
The Administrative Appeals Unit ("AAU") has jurisdiction over numerous different kinds of immigration petitions and applications. If you receive a denial notice, USCIS will advise you of your right to appeal and of which office handles appeals, and will provide you with the appropriate appeal form and time limit.
You may need or want to file not only documents proving your arguments, but a written explanation (or if a lawyer prepares it, a "brief") 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, or
- send the matter back to the original decision-maker for further action.
Q: What can you do if an acquaintance is refused a visa under I.N.A. Section 214(b) for lack of a residence abroad?
- A: First, encourage your relative, friend, or student to carefully review the situation and evaluate realistically his or her ties to the home country. You can suggest that the applicant write down on paper what qualifying ties may not have been evaluated at the time of the consular interview.
Also, the person should review what documents were submitted for the consul to consider. Applicants refused visas under Section 214(b) may reapply for a visa, but will have to show further evidence of ties to the home country or how 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 additional information I can present to establish my residence and strong ties abroad?
Your acquaintance should also bear in mind that he or she will be charged a nonrefundable application fee each time he or she applies for a visa, regardless of whether a visa is issued.
Q: What constitute "strong ties" to the home country?
- 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. Each person's situation is different.
U.S. 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 situation, and long-range plans and prospects within the country of residence.
Q: When is a "motion to reopen" or a "motion to reconsider" more appropriate than an appeal?
- A: In addition to the right to appeal (in which you ask a higher authority to review a denial within a certain time period), there are circumstances in which you may be able to file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. A motion to reopen must state new facts that are to be provided, 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 policy, and that the decision was incorrect based on the evidence in the file at the time the decision was made.
Q: What is I.N.A. Section 214(b)?
- A: Section 214(b) of the Immigration and Nationality Act (I.N.A.) 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."
In other words, the law presumes that everyone applying for a temporary (nonimmigrant) visa is actually looking for a way to stay in the U.S. permanently. This is a major reason that many applications for nonimmigrant visas are denied.
Q: Who can influence the consular officer to reverse a decision?
- A: Immigration law delegates 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 ties to his or her home abroad, is a factual one. Therefore, it falls exclusively within the authority of consular officers at their foreign 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. In cases where one person is filing on behalf of another, as is required when someone petitions for a family member or employee to receive a U.S. visa, the petitioner alone has "standing" to appeal the denial of a visa petition. The foreign would-be beneficiary may not appeal this decision.
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 Form G-28 (Notice of Entry or Appearance as Attorney or Representative).