Appealing Immigration Decisions With Form I-290B - FAQ

Questions and answers about using Form I-290B to appeal administrative decisions by the immigration authorities.

If you are not in immigration court proceedings, but have had an immigration-related petition or application denied or revoked by U.S. Citizenship and Immigration Services (USCIS) or the U.S. Department of Labor (DOL), you most likely have a right to appeal. The form that's usually used for this is USCIS Form I-290B.

Can anyone appeal?

In theory, yes, but not everyone can win. You should really file an appeal only if you have a valid argument that USCIS or DOL made a mistake in your case -- for example, by overlooking an important fact in applying the law. Make sure you fully understand the reason for the denial before potentially wasting time on an appeal.

How much time do I have to appeal a USCIS or DOL decisionl?

Form I-290B must be filed within 30 days of the date of service of the order on appeal. If the order was mailed to you, you must file the form within 33 days of its issuance. If the order relates to a revocation of an application or petition, Form I-190B must be filed within 15 days of service, or 18 days if you received the notice by mail. You'll be given instructions on where to send the appeal with your denial notice. If you fail to file the appeal on time, and can't explain your failure with any extenuating circumstances, the negative decision will become final.

Can an employee appeal a decision made denying an employment petition?

Your employer or an attorney for the employer can file an I-290B appeal, but the employee cannot. This is because only petitioners or their representatives -- that is, the people who filed the form in the first place -- may file an appeal or motion. Beneficiaries may not.

Will I be provided an attorney for free if I prove I cannot afford one?

No. In criminal court, the U.S. provides accused people with an attorney if they cannot afford one. Unfortunately, the same is not true for immigration related legal matters. If you need help appealing your case, you may be represented by an attorney at your own expense or through a volunteer lawyer organization. The U.S. government will not provide you with an attorney.

Should I submit more evidence or a summary of my arguments for the appeal?

Yes, preferably both. If you have new evidence since the first time the USCIS considered your case, you should find make copies of it (if it's in documentary form) or attach affidavits from witnesses or experts. It's also worth drafting a document known as a “brief,” which summarizes the evidence, the law, and the facts in your case. It's best to get a lawyer's help with this. You are NOT required to submit a brief, but it is advised for a successful appeal. It helps the appeals unit better understand your position that a mistake has been made.

When a person appeals a decision to an appellate court in a U.S. state court, he or she can request oral arguments to talk to the judges who will decide the appeal. Can I request oral arguments in my I-290B appeal as well?

You may request oral arguments, but they're rarely granted. The arguments take place in Washington DC. Oral arguments are an added expense to the immigrant and require more time by the appeals unit. Therefore, you will have to provide a convincing reason as to why oral arguments are necessary in your case.

How long will it take to get an answer on my appeal?

Prepare yourself for a wait of a year or two. USCIS publishes the latest appeal processing times by the Administrative Appeals Office (AAO) on the "AAO Processing Times" page of its website.

Is it better to appeal, or to reapply?

In many cases it's easier to reapply for the same benefit than to file an appeal. By starting fresh, and presenting a more careful collection of forms and documents, you avoid the problem of trying to convince a government bureaucrat that his or her agency made a mistake.

If you are not sure what the best route is for your case, be sure to talk to an immigration attorney before making any critical decisions.

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