Seeking Relief Through Appeals

1. Seeking Relief Through Appeals Appeals Before The Administrative Appeals Office (AAO) • Should a petition or application be denied or revoked by the USCIS, in most cases the alien may appeal that decision to a higher authority. • There are strict deadlines that must be met to properly file an appeal. T • The appeal must be filed with the correct fee at the office that made the original decision. The alien may file a brief in support of the appeal • In addition to the right to appeal, the alien may file a motion to reopen or a motion to reconsider with the office that made the unfavorable 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 USCIS policy, and further establish 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.

2. Seeking Relief Through Appeals Who May Appeal? • The person bringing the appeal must have standing. • Only the person that 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.

3. Seeking Relief Through Appeals • What Are the Processing Times on Appeals? AAO Processing Times on Appeals (as of December 18, 2007) Case TypeTime • I-140 EB1 (A)     Alien with Extraordinary Ability                            11 Months • I-140 EB1 (B)     Outstanding Professor or Researcher                      Current • I-140 EB1 (C)     Multinational Manager or Executive                         Current • I-140 EB2           (D) - National Interest Waiver                                  14 Months • I-140 EB3           (E), (G) -  Skilled, Professional, or Other Worker     11 Months • I-687, 698, 700  Legalization Applicant; Special Agricultural Worker   12 Months • I-526 EB5          Alien Entrepreneur                                                     Current • I-129 L               Nonimmigrant Intracompany Transferee                   Current • I-129 H1B           Nonimmigrant Specialty Occupation Worker            8 Months • I-129 H2, H3       Temporary Nonimmigrant Worker                            Current • I-129 O               Nonimmigrant Extraordinary Ability Worker              10 Months • I-129 F                Petition for Fiancée              Current

4. Seeking Relief Through Appeals Appeals Before The Administrative Appeals Office (AAO) Forms Required I-290 G-28 (if appearing before the Administrative Appeals Office) Documents Required Decision of the district director; Legal Brief; and Documents to support the facts of the brief

5. Seeking Relief Through Appeals Appeals Through The Immigration Court • Notice to Appear • Initiates the Removal Process • Created by a Homeland Security Officer • The Officer must serve all parties with a copy of the Notice • The notice gives the statutory citation of the grounds of removal that the alien is charged with. • Hearing Date Issued (Master Calendar Hearing) • The alien & his/her attorney must admit or deny each allegation in the Notice to Appear • This is the alien’s “first appearance” in Court.

6. Seeking Relief Through Appeals 3. Individual Merits Hearing • After the Master Calendar Hearing, the Judge will schedule • an Individual Merits Hearing. • The alien may call witnesses at this hearing. • The Federal Rules of Civil Procedure Apply • Judge’s Opinion Issued • The judge will state whether the alien will be removed from the U.S. or whether he may remain.

7. Seeking Relief Through Appeals • If the alien does not like the Judge’s opinion, he may appeal to the Board of Immigration Appeals (BIA) within 30 days • The BIA will not hear new testimony. • The BIA is an administrative appellate body that is part of the U.S. Department of Justice. • BIA decisions are the final administrative action in a given case. • The next stage of appeal after a BIA decision is usually in the U.S. Court of Appeals, if an appeal is allowed by statute. • The BIA is located in Falls Church, Virginia, and comprises 11 Board Members, who are administrative judges appointed by the U.S. Attorney General.

8. Board of Immigration Appeals Forms Required Form EOIR-26 Form EOIR-27 A photocopy of the evidence submitted to the BIA must be submitted to the government attorneys. Documents Required Decision of the district director; Legal Brief; and Documents to support the facts of the brief

9. Alien is a lawful permanent resident (LPR) ALIEN MUST PROVE: Lawfully admitted to the U.S. for no less than 5 years; and Continuously lived in U.S. for 7yrs.; and Not convicted of an aggravated felony; and Removal to another country would be an extreme hardship to his spouse, parent, or child who is a LPR Non-permanent resident alien ALIEN MUST PROVE: Continuously present in the U.S. for no less than 10 years; and Good moral character for those 10 yrs; and Has not been convicted of criminal grounds of inadmissibility (EX: drug and people traffickers); and No conviction for falsifying a document or failure to register for the draft; and Removal would cause exceptional & extremely unusual hardship to his spouse, parent, or child who is a LPR. Cancellation of Removal Cancellation of Removal

10. 14 Hardship Factors for Cancellation of Removal • Immigration history of the alien • Country Conditions in alien’s native country • Community ties • Assimilation into the U.S. culture • Position in the Community • Attachment to friends in the community • Occupation • Health Conditions • Age at time of arrival • Age Now • Length of residence in the U.S. • Family Ties in the U.S. • Other means of adjusting the alien’s status • Financial Status