February - 2014 - issue > Attorney Insights

A Primer on Motions and Appeals in Immigration Law

Deepali V Lugani
Monday, February 10, 2014
Deepali V Lugani
The Immigration and Nationality Act and Regulations provide individuals with several avenues to challenge erroneous denials of their immigration petitions by the USCIS. Upon denial of an immigration petition, the affected party's first step should be to review the right to appeal the decision and the potential grounds for appeal. Depending on the facts of the case, the petitioner may have grounds to appeal an adverse decision on an immigration petition few months later, and in select few cases, even few years down the lane.

Generally, when USCIS denies a petition or application for immigration benefits, the regulations require that the officer provides written reasons for denial. The denial letter should also contain information on the party's right to appeal or file a motion to reopen or reconsider the denial, the deadline to submit the notice of appeal and accompanying evidence, the proper venue, and regulations pursuant to which the right to appeal arises.

Reasons to appeal denials of immigration benefits can include abuse of discretion by the agency or the immigration judge, an arbitrary denial of an application, erroneous application of law, or consideration of new material and relevant facts.

Under the immigration regulations, the affected party with legal standing to challenge denials of immigration applications is the petitioner, not the beneficiary. Thus, the U.S. employer has the right to challenge denial of an H-1B or PERM application, not the foreign worker. However, in cases where beneficiaries are also petitioners they have standing to appeal denials of their applications.
Examples of these include an F-1 student, an applicant for Employment Authorization Document (EAD), Optional Practical Training (OPT), or adjustment of status (I-485) even when filed concurrently with employer's I-140, a beneficiary seeking removal of conditions on permanent resident card, and so forth.

Petitioners can appeal immigrant and nonimmigrant visa petitions. Some examples of appealable decisions include challenging agency's consideration of equivalent foreign degree in adjudicating an H-1B or PERM petition, agency's failure to consider relevant evidence for course requirements for bona fide F-1 students, and failure to examine relevant evidence for managerial or executive duties for an L-1 petition. Petitioners can appeal erroneously denied immigration petitions for family members such as an I-130, discretionary waivers of inadmissibility such as an I-601 or I-212 waiver, and denial of employment based I-140, PERM, or an H-1B application. Applicants in removal and deportation proceedings should be particularly mindful of appeal rights available to them almost every step of the way under the Act and the regulations.

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