If you are the beneficiary of an I-129 Petition for a Nonimmigrant Worker that has been denied by the U.S. Citizenship and Immigration Services (USCIS), your employer will probably have the right to appeal that decision.
Before considering an appeal, it is important for your employer to analyze the basis for USCIS's denial of the I-129 petition. This will be outlined in the agency's notice of denial.
This step is important, because the employer must feel certain that the decision is one that should, and can be reversed. It might also turn out that the basis for the denial is one that can be resolved through alternative measures that do not require the filing of an appeal.
If your employer believes that the USCIS decision is reversible and chooses to file an appeal, it must prepare and submit Form I-290B Notice of Appeal or Motion. The notice of denial will usually include this form as an attachment.
Form I-290B provides the following options for a denied I-129 petition:
If your employer is choosing to file an appeal, it is important that it indicate this in part two of Form I-290B, which requests information about the appeal or motion. Regardless of which option it selects, the employer must complete Form I-290B in its entirety and submit it with a filing fee ($675 in 2019; this fee is subject to change).
For instruction and answers to common questions on the appeal form, see Appealing Immigration Decisions With Form I-290B - FAQ.
Form I-290B must be prepared and filed by the employer. That's based on the fact that the I-129 petition was filed by the employer, meaning that only the employer has the right to appeal its denial.
Part one of the form asks for information about the petitioner (employer), as well as the attorney if the employer has legal representation. Part three of the form requires a statement from the employer about why the USCIS decision was made in error and should be reversed.
The employer will have the option to submit a legal brief and/or additional evidence that supports its argument. These documents can be submitted with Form I-290B as an attachment, or within 30 days after the appeal is filed.
It is a good idea for the employer to take advantage of this option, as a brief lets it present a more complete argument for the reversal, and additional evidence (if available) will be more persuasive than a statement on its own.
The employer can also request oral argument before the AAO. A letter explaining why an oral argument is necessary will have to be attached to Form I-290B at the time of filing. An oral argument should be requested only if the employer's argument cannot be adequately addressed in writing. The AAO has complete discretion on whether to grant or deny this request.
Once the I-290B appeal is completed, it must be submitted to the appropriate USCIS lockbox. Always check the USCIS website for the filing location, as it is subject to change.
After the employer has filed the I-290B appeal, USCIS will issue a receipt notice, containing a case number. This number is important—it can be used when making future inquiries about the status of the appeal. The AAO will make an effort to reach a decision on an appeal within six months of receipt.
It is important to know that filing an appeal does not provide any immigration status and does not prevent an immigrant from accruing unlawful presence in the United States—a ground of inadmissibility that can prevent (or seriously delay) future approvals for visas or green cards. You will need to make sure that you understand your legal rights and responsibilities, including the bar to reentry, if you accumulate too much unlawful presence.