An Overview of the Administrative Appellate Review of the USCIS Officers’ Decisions
The Administrative Appeals Office (AAO) conducts administrative appellate review of U.S. Citizenship and Immigration Services (USCIS) officers’ decisions regarding immigration benefit requests under its jurisdiction. The AAO adjudicates three primary categories of cases: appeals, motions, and certifications.
When a USCIS field office issues an unfavorable decision for an application or petition that falls under the AAO’s jurisdiction, the appellant may appeal the decision to the AAO. Not every type of denied immigration benefit request may be appealed, and some appeals fall under the jurisdiction of the Board of Immigration Appeals (BIA). AAO’s jurisdiction includes the following case types:
- I-129 Petition for R-1 Nonimmigrant Religious Workers
- I-129 Petition for Nonimmigrant Temporary Workers, Trainees, Fiancé(e)
- I-129 Revocation of Nonimmigrant Petition
- I-131 Application for Issuance of Reentry Permits
- I-131 Application for Refugee Travel Documents
- I-140 Petition for Certain Scientists of the CIS or the Baltic States
- I-140 Petition for Employee of U.S. Business Operating in Hong Kong
- I-140; 360; 526 Employment-Based Immigrant Visa, Special Immigrant, and Entrepreneur
- I-212 Application for Reentry after Removal or Aggravated Felony Conviction
- I-352 Breach of Surety Bond
- I-360 Petition for Armed Forces Special Immigrant
- I-360 Petition for Special Immigrant Employee of an International Organization
- I-360 Petition for Special Immigrant Panama Canal
- I-360 Petition for Special Immigrant Physician
- I-360 Petition for Special Immigrant Juvenile
- I-360 Petition for Spouse or Child under VAWA
- I-360 Petition to Classify Amerasians as Children of U.S. Citizens
- I-485 Adjustment of Status of Diplomats
- I-485 Application for Adjustment of Status-Indochinese Refugees
- I-485 Application for Status of Certain Cuban and Haitian Nationals
- I-485 Adjustment of Status of T Nonimmigrants
- I-485 Adjustment of Status of U Nonimmigrants
- I-600 Petition for Orphans
- I-600A Application for Advance Processing of Orphan Petition
- I-601 Waivers of Inadmissibility under 212(g),(h) or (i)
- I-612 Waivers of Two-Year Foreign Residence Requirement under 212(e)
- I-687, I-698 Legalization: Application for Temporary or Permanent Residence
- I-690 Legalization and SAW: Application for Waiver of Grounds of Excludability
- I-700 Special Agricultural Worker: Application for Temporary Residence
- I-821 Application for Temporary Protected Status
- I-800 Petition to Classify Convention Adoptees as Immediate Relatives
- I-800A Application to Determine Suitability to Adopt a Child from a Convention Country
- I-914 Application for T Nonimmigrant Status as Alien Victim of Trafficking
- I-918 Petition for U Nonimmigrant Status as Alien Victim of Certain Crimes
- N-470 Application to Preserve Residence for Naturalization Purposes
- N-565 Application for New Naturalization or Citizenship Papers
- N-565 Application for Special Certificates of Naturalization
- N-580 Application for Certificate of Naturalization or Repatriation
- N-600 Application for Certification of Citizenship
AAO can also exert jurisdiction over the following decisions of the USCIS:
- Administrative Cancellation of Certificates, Documents, and Records [8 CFR 342.8)]
- Certification of the Denial of Any Petition by a USCIS Office [8 CFR 103.4]
- Denial of Adjustment for Not Establishing Bona Fide Marriage Exemption [Sec. 245(e) of the Act]
- Invalidation of Temporary Labor Certificates Issued by Governor of Guam [8 CFR 214.2(h)(6)(v)(H)(3)]
- Legalization: Termination of Temporary Resident Status [8 CFR 245a.2(u)]
- Request for Participation as Regional Center [8 CFR 204.6(m)]
- Revocation of Immigrant Visa Petition [8 CFR 205.2]
- Special Agricultural Worker: Termination of Temporary Resident Status [8 CFR 210.4(d)]
- Termination of Participation as Regional Center [8 CFR 204.6(m)]
Even for case types under its jurisdiction, the AAO does not consider appeals in the following scenarios:
- A field office’s rejection of an immigration benefit request may not be appealed to the AAO, because rejection does not retain a filing date, and there is no merits-based decision for the AAO to review.
- Field office denials of an immigration benefit request as abandoned, administratively terminated, or administratively closed may not be appealed to the AAO. (Although, appellants may file a motion to reopen the field office decision.).
- An appellant may not appeal a field office’s unfavorable decision on a motion to reopen or reconsider unless the field office’s original decision was appealable to the AAO.
Filing Requirements for Appeals
To appeal an unfavorable decision to the AAO, a person or entity must have legal standing. A petitioner or an applicant has legal standing in an appeal, motion, or certification before the AAO. With some narrow exceptions, the beneficiary of a petition or another third party does not have legal standing. If the person or entity submitting an appeal does not have legal standing, the appeal will be rejected as improperly filed and no refund will be given of any previously accepted filing fee.
- Time Period for Filing
For most appeals, appellants must file an appeal within 30 calendar days after personal service of the decision, or 33 calendar days if the decision was mailed. For decisions involving the revocation of an approved immigrant petition, an appellant must file an appeal of a USCIS decision within 15 calendar days after personal service of the decision or 18 calendar days if the decision was mailed. An appeal which is not filed within the time allowed will be rejected as improperly filed. However, if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the field office that made the unfavorable decision must treat the untimely appeal as a motion, and make a new decision on the merits of the case.
If the evidence in the record does not establish eligibility for the requested immigration benefit, the AAO may dismiss the appeal, request more information, or evidence from the appellant, or notify the appellant of its intent to dismiss the appeal. Requests for evidence (RFE) and notices of intent to dismiss (NOID) specify the type of evidence required and the bases for the proposed dismissal, respectively.
The RFE or NOID will state the deadline for responding, up to a maximum of 12 weeks from the issuance of an RFE or 30 days for a NOID.
- AAO Decision
The AAO’s common appeal dispositions may be sustained, dismissed, rejected, or remanded.
- Sustain: If an appellant establishes eligibility for the requested immigration benefit, the AAO may sustain the appeal and order the approval of the application or petition.
- Dismissal: The AAO may dismiss an appeal when an appellant fails to establish eligibility for the requested immigration benefit. The AAO may also dismiss an appeal as abandoned when the appellant fails to respond to an RFE or NOID by the required date.
- Summary Dismissal: The AAO may summarily dismiss an appeal when the appeal does not specifically identify any legal or factual error in the original decision.
- Rejection: The AAO will reject improperly filed appeals. Improperly filed appeals may include appeals that are untimely filed, missing or incorrect filing fee, of case types that do not fall under the AAO’s jurisdiction if the party submitting the appeal does not have legal standing in the proceeding, or if appeal form is missing signature.
- Remand: The AAO may remand a decision to the office that made the unfavorable decision to take further action and to enter a new decision. For example, the AAO may remand a decision if the appellant has overcome the grounds of the unfavorable decision on appeal, but the AAO has identified additional grounds of ineligibility during its review. In this case, the AAO may determine that it is more appropriate to remand the matter to the office that made the unfavorable decision instead of issuing an RFE or NOID.
An appellant may not appeal an unfavorable AAO’s decision. However, the appellant may file a motion to reopen or reconsider the AAO decision.
- Motions to Reopen and Reconsider
If the Administrative Appeals Office (AAO) issues an unfavorable decision, the appellant may file a motion to reopen the proceeding, a motion to reconsider the decision. Unlike appeals, which requires a different authority to review a decision, motions request a review by the same authority that issued the latest decision in the proceeding. A motion to reopen is based on documentary evidence of new facts. A motion to reconsider is based on a claim of incorrect application of law to the prior decision. Appellants may file a combined motion to reopen and reconsider, in which case the AAO will consider each motion independently. The AAO may grant both motions, grant one motion but deny the other, or deny both motions.
- Motions to Reopen
A motion to reopen must state new facts and be supported by documentary evidence. Resubmitting previously provided evidence or reasserting previously stated facts will not meet the requirements of a motion to reopen.
- Motions to Reconsider
A motion to reconsider must establish that the AAO based its decision on an incorrect application of law or policy, and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. The AAO will not consider new facts or evidence in a motion to reconsider. A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy. Citing to an authority that is not relevant to the issues raised on motion will not meet the eligibility requirements of a motion to reconsider.
Appellants must file a motion within 30 days of the unfavorable decision (or 33 days if the decision is mailed). Appellants are not required to submit a brief with their motions; however, if they choose to submit a brief or additional evidence, they must do so concurrently with their motions.
A U.S. Citizenship and Immigration Services (USCIS) official may ask the Administrative Appeals Office (AAO) to review an initial decision for a case that has an unusually complex or novel issue of law or fact. This administrative procedure is known as “certification.” A USCIS official may certify case types that fall under the jurisdiction of the Board of Immigration Appeals (BIA) to the Board. A USCIS official may certify any other type of case to the AAO, including cases that do not convey appeal rights. Furthermore, a USCIS official may certify any decision type including approvals, denials, and revocations to the AAO.
To certify a case to the AAO for appellate review, a USCIS certifying office must first issue an initial decision. The initial decision should articulate an unusually complex or novel issue of law or fact to be reviewed by the AAO. The AAO will return a case to the certifying office if it lacks an initial decision, or if the initial decision does not involve an unusually complex or novel issue of law or fact. Along with the initial decision, the USCIS certifying office will also send a Notice of Certification (Form I-290C), which notifies the appellant of the right to submit a brief within 30 days of the notice (or 33 days if the notice is mailed). There is no requirement to submit a brief.
The initial decision certified to the AAO is not final until the AAO issues a decision. The AAO will review the initial decision and may order any action consistent with its authority under the law as is appropriate and necessary for the disposition of the case. The AAO will serve its decision by mail on the appellant and any representative of record.
If the AAO orders the approval of the petition, the AAO will return the matter to the certifying office for continued processing and to generate any USCIS documents related to the approved benefit request. The AAO may also remand a certified case if it identifies additional grounds of ineligibility during its review that the field office did not address in the initial decision. If the AAO’s decision is unfavorable, the appellant may file a motion to reopen or reconsider the AAO’s decision. If an appellant files a new application or petition for the same benefit request that is before the AAO on certification, USCIS may hold the new filing in abeyance until the AAO issues a final decision.
- Representation by an Attorney or Other Representative
An appellant may be represented by an attorney or other representative. However, here are just a few reasons why you should consider hiring an attorney if you are planning on appealing an unfavorable USCIS decision, or must respond to Request for Evidence (RFE) or Notice of Intent to Deny (NOID):
Although you are not required to submit a supplemental brief, doing so will increase your chances of winning the appeal. If you proceed with the help of an attorney, he or she will more likely submit a brief in support of your appeal. An appeal must specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision. Failure to specifically identify an error may result in the AAO summarily dismissing an appeal. An attorney can help you identify the factual or legal errors in order to increase your chances for a successful appeal. When responding to an RFE or NOID, you must timely submit all requested materials together at one time, along with the original RFE or NOID. If you submit only some of the requested evidence, the AAO will consider the response as a request for a decision on the record, which may not be enough to carry your Burdon of proof. If you fail to submit all requested evidence that is material to the requested immigration benefit, is grounds for dismissing the appeal. If you fail to respond altogether to an RFE or NOID by the required date, the AAO may dismiss the appeal as abandoned, dismiss based on the record, or dismiss for both reasons. These decisions about responding to an RFE or NOID should be made with the help of an attorney, specially in cases involving NOID, which sometimes contain mistakes in facts or law. An immigration attorney can identify the main issues, assess whether the agency’s reasons for issuing the NOID are valid and effectively address the errors, and explain why the NOID should be withdrawn and your case should be approved.