Prepare your I-29-B carefully, because if it's not properly executed and sent to the right address within the allotted time, you could lose your opportunity to file an appeal or motion altogether in your immigration case.
If a petition or application filed with U.S. Citizenship and Immigration Services (USCIS) or the Department of Labor (DOL) is either denied or revoked (meaning the agency reverses its previous approval), whoever filed the petition usually has an opportunity to submit an appeal. The standard way of doing this is using USCIS Form I-290B, Notice of Appeal or Motion, which is sent to USCIS. (The exact address depends on the type of appeal.) We'll discuss whether that's the appropriate next step for you in this article, and offer some tips on filing it.
Who Cannot Appeal an Immigration Decision Using Form I-290B
There are several exceptions to this method of appeal. One can't use Form I-290B to appeal visa denials by overseas U.S. consulates, for example (for which no appeal is available).
And, in cases where the Board of Immigration Appeals (B.I.A.) has jurisdiction, such as over requests for relief denied by an immigration judge during deportation or removal proceedings, one cannot file an I-290B appeal, but must instead file an appeal with the B.I.A. directly.
Another major exception is after USCIS prohibits a U.S. citizen or lawful permanent resident from petitioning a foreign spouse of fiancé(e) owing to past sexual misconduct (under the Adam Walsh Act). No appeal is available in this case, though one can ask USCIS to reopen or reconsider its decision, also using Form I-290B.
Who Can Appeal Using Form I-290B
Form I-290B can be used when one wishes to either:
- appeal a USCIS decision to the Administrative Appeals Office (AAO)
- file a motion with USCIS to reconsider a decision it made in your case, or
- appeal an Immigration and Customs Enforcement (ICE) denial of Form I-17, "Petition for Approval of School for Attendance by Nonimmigrant Student."
See submission instructions farther below.
Who Should Sign Form I-290B?
The best person to sign Form I-290B and request an appeal is normally the person who filed the initial petition or application (the petitioner or applicant). The intended beneficiary may sign it only in cases where the petitioner is also the beneficiary (a self-petitioner), such as for some waiver applications and certain employment-based immigrant petitions.
The form can also be signed by an authorized official of a petitioning employer.
How Do I File Form I-290B?
Prepare your I-29-B carefully, because if it's not properly executed and sent to the right address within the allotted time, you could lose your opportunity to file an appeal or motion altogether. To successfully file it, you must:
- Complete, sign, and date Form I-290B.
- Add evidence and/or sworn affidavits to support your contention that the appeal or motion should be granted. Don't just rehash what you submitted before; figure out why the U.S. government wasn't convinced, and do your best to come up with new or better evidence. Ideally, you should also submit a "case brief," thoroughly outlining your case and the applicable laws. (This might be a good reason to hire a lawyer.)
- Attach the appropriate application filing fee, either by check, money order, or if filing at a USCIS lockbox, by credit card, using Form G-1450, Authorization for Credit Card Transactions; or if your income is low, you might be able to request a fee waiver (see the Instructions that come with the form), and
- Mail it to the government office that's appropriate for your type of application, within the time specified on the denial or revocation, so that they receive it before the deadline has passed. It's not enough that a form be postmarked by the U.S. Postal Service by the deadline.
If you do not file your appeal form on time, you could still go ahead and submit it. However, you'd also need to present evidence of very good cause for your delay, such as a death or serious illness. Without that, the appeal or motion would be rejected and the previous decision would become final. Definitely get a lawyer's help if you're in this situation.
What Are My Chances of Winning an Appeal or Motion?
It is difficult to determine whether you will win an appeal or a motion, particularly without a thorough examination of the evidence and the immigration laws pertaining to your situation. Remember, you are dealing with a government agency and your appeal or motion must convince a higher authority within the same agency that its counterpart made a mistake.
Does this mean you can't win? No. However, in many cases, simply starting over and filing a new petition or application that sufficiently addresses the deficiencies brought up in the first denial might be more effective, and faster, than filing an appeal or motion.
Whatever you believe to be the reason your case was improperly denied or your approval revoked, the best way to build a strong case for your appeal or motion, or to determine whether you should simply file a new case, is to consult an immigration attorney. The attorney will evaluate the evidence, regulations, and basis for the denial. Doing this could also save you a lot of money by avoiding multiple filing fees, which are continually increasing. And, it will significantly increase your chances of success.
