Chapter 1. The Administrative Appeals Office

 

 

Chapter 1. The Administrative Appeals Office

1.1       Practice Manual

This Practice Manual describes rules, procedures, and recommendations for practice before the Administrative Appeals Office (AAO).

This Practice Manual is provided for the information and convenience of the public and parties that appear before the AAO.  It does not replace or modify any legal authority or U.S. Citizenship and Immigration Services (USCIS) policy.[1]

The AAO will update this Practice Manual periodically.  The current version is posted on the AAO’s home page within the USCIS website at www.uscis.gov/aao.

The AAO welcomes and encourages the public to provide comments and propose improvements to this Practice Manual.[2]

1.2       AAO Overview

The AAO conducts administrative appellate review of USCIS officers’ decisions regarding immigration benefit requests under its jurisdiction in order to promote consistency and accuracy in the interpretation of immigration law and policy.

While the AAO exercises independent, de novo appellate review[3]of USCIS officers’ decisions, the AAO is not independent of its parent agency, USCIS.[4]  The AAO applies USCIS policies and legal interpretations to matters before it.

For more information about the AAO, please visit www.uscis.gov/aao.

1.3       AAO History

The Immigration and Naturalization Service (INS) established the Administrative Appeals Unit (AAU) in 1983 to centralize the review of administrative appeals.[5]   Before 1983, the INS commissioner, four regional commissioners, and three overseas district directors shared responsibility for the adjudication of administrative appeals and the issuance of precedent decisions.

The INS later established the Legalization Appeals Unit (LAU) to adjudicate appeals of denied Legalization and Special Agricultural Worker applications under the Immigration Reform and Control Act of 1986.  In 1994, the INS consolidated the AAU and the LAU to create the AAO.[6]

The Homeland Security Act of 2002 dismantled the INS and separated the former agency into three components within the Department of Homeland Security (DHS).  On March 1, 2003, USCIS officially assumed responsibility for the immigration service functions of the federal government, with the AAO as one of its offices.

1.4       Jurisdiction and Types of Cases

The AAO adjudicates three primary categories of cases: appeals, motions, and certifications.  Each category serves a different function and has distinct requirements that are covered in more detail below.

Only a person or entity with legal standing in a proceeding (an “affected party”) may file an appeal or motion, or submit a brief in response to a Notice of Certification (Form I-290C).[7]  Affected parties may include petitioners, self-petitioners, applicants, or, in the case of bond breach appeals, bond obligors.  For simplicity, this Practice Manual refers to all affected parties as “appellants.”

(a)        Appeals

When a USCIS field office[8]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.

Under the authority that the Secretary of DHS delegated to USCIS, the AAO exercises appellate jurisdiction over approximately 50 different immigration case types.[9]

Not every type of denied immigration benefit request may be appealed, and some appeals fall under the jurisdiction of the Board of Immigration Appeals (the Board), which is a part of the U.S. Department of Justice (DOJ).[10]

The USCIS website lists the AAO’s jurisdiction by both subject matter and form number, and includes the following case types:

  • Most employment-based immigrant and nonimmigrant visa petitions (Forms I-140 and I-129);
  • EB-5 immigrant investor petitions (Form I-526) and Regional Center applications (Form I-924);
  • Temporary Protected Status applications (Form I-821);
  • Fiancé(e) petitions (Form I-129F);
  • Applications for a waiver of inadmissibility (Form I-601);
  • Applications for permission to reapply for admission after removal (Form I-212);
  • Certain special immigrant visa petitions (Form I-360, except for Form I-360 widower appeals, which are appealable to the Board);
  • Orphan petitions (Forms I-600/I-600A and I-800/I-800A);
  • T visa applications for victims of human trafficking (Form I-914), U visa petitions for victims of criminal activity (Form I-918), and the related adjustment of status applications (Form I-485);[11]
  • Applications for certificates of citizenship (Form N-600) and applications to replace certificates of naturalization and citizenship (Form N-565);
  • Applications to preserve residence for naturalization purposes (Form N-470); and
  • Immigration and Customs Enforcement determinations that a surety bond has been breached.

The AAO also has jurisdiction to review USCIS field office decisions revoking the approval of certain petitions.[12]

For more information about appeals to the AAO, see Chapter 3.

(b)       Motions to Reopen and Motions to Reconsider

The AAO has jurisdiction over motions to reopen and motions to reconsider its own decisions.[13]   If the AAO issues an unfavorable decision, the appellant may file a motion to reopen or a motion to reconsider that decision.  The AAO may also reopen or reconsider one of its prior decisions on its own motion.[14]

A motion to reopen is based on documentary evidence of new facts.  Alternatively, a motion to reconsider is based on a claim of incorrect application of law or policy to the prior decision.[15]

For more information about motions on AAO decisions, see Chapter 4.

(c)        Certifications

USCIS officers may ask the 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.”

Except for case types that fall under the BIA’s appellate jurisdiction, USCIS officers may certify any decision type to the AAO, including decisions that do not convey appeal rights.[16]

For more information about certifications to the AAO, see Chapter 5.

1.5      Non-Precedent, Adopted, and Precedent Decisions

The AAO generally issues non-precedent decisions that apply existing law and policy to the facts of an individual case.  Non-precedent decisions are binding on the parties involved in the case, but do not create or modify USCIS policy or practice.  The AAO does not announce new interpretations of law or establish agency policy through non-precedent decisions.  As a result, non-precedent decisions do not provide a basis for applying new or alternative interpretations of law or policy.  Non-precedent decisions are available for review at the AAO Non-Precedent Decisions webpage on the USCIS website.

USCIS may also “adopt” an AAO non-precedent decision to provide policy guidance to USCIS employees in making determinations on applications and petitions for immigration benefits.  Adopted AAO decisions are available for review at the Adopted AAO Decisions webpage on the USCIS website. 

On occasion, the Secretary of DHS may, with the Attorney General’s approval, designate AAO decisions to serve as precedents in all future proceedings involving the same issue(s).  These precedent decisions, except as modified or overruled by later precedent decisions or statutory or regulatory changes, must be followed by DHS employees.  AAO precedent decisions may announce a new legal interpretation or agency policy, or may reinforce an existing law or policy by demonstrating how it applies to a unique set of facts.  AAO precedent decisions are available online through the Precedent Decisions webpage on the USCIS website.

For more information about non-precedent, adopted, and precedent decisions, see Chapter 3.15.

1.6       The Board of Immigration Appeals

The Board and the AAO are separate administrative appellate entities that have jurisdiction over different types of immigration cases.  The Board is located within the DOJ’s Executive Office for Immigration Review (EOIR).

The majority of appeals to the Board involve decisions that EOIR immigration judges made in removal proceedings.  The Board also reviews USCIS decisions on immigrant petitions for alien relatives (Form I-130).  The Board’s appellate jurisdiction is enumerated at 8 C.F.R. § 1003.1(b).[17]

The Board has the authority to designate its decisions as precedent.  Board precedent decisions are binding on immigration judges and DHS employees in cases involving the same issue(s).

EOIR publishes all AAO and Board precedent decisions in bound volumes entitled Administrative Decisions Under Immigration and Nationality Laws of the United States.  Precedent decisions can also be found online at EOIR’s Virtual Law Library.

In addition, the Board is responsible for recognizing organizations and accrediting representatives who wish to practice before the Immigration Courts, DHS, and the Board.  The Board is also an important part of EOIR’s program that disciplines attorneys and accredited representatives who violate rules of professional conduct while practicing before the Immigration Courts, DHS, and the Board.

Footnotes


[1] [^]  This Practice Manual does not create any enforceable right or benefit, substantive or procedural, in any proceeding.  It does not constitute legal advice, nor is it a substitute for legal advice.

[2] [^]  Please mail or fax any comments or suggestions to the AAO with “AAO Practice Manual” in the subject line.  See Chapter 6.1 for the AAO’s contact information.

[3] [^]  For more information about the AAO’s standard of review, see Chapter 3.4.

[4] [^]  USCIS oversees lawful immigration to the United States by adjudicating immigration benefit requests.  For more information about USCIS, see www.uscis.gov.

[5] [^]  Powers and Duties of Service Officers; Availability of Service Records, 48 Fed. Reg. 43,160 (Sept. 22, 1983).

[6] [^] Implementation of Internal Reorganization of the Immigration and Naturalization Service, 59 Fed. Reg. 60,065, 60,066 (Nov. 22, 1994).  The current USCIS regulations refer to both the AAU and the AAO.

[7] [^] 8 C.F.R. § 103.3(a)(1)(iii)(B).  See Chapter 3.7(a) for more information about persons or entities eligible to file an appeal. 

[8] [^] For the purposes of this Practice Manual, the AAO uses the term “field office” broadly to include USCIS field offices, international offices, Service Centers, and the National Benefits Center.  The contact information for the various USCIS offices is available at the Find a USCIS Office webpage.

[9] [^] The Secretary of DHS may delegate any authority or function to administer and enforce the immigration laws to any official, officer, or employee of DHS pursuant to 6 U.S.C. § 112(b)(1) and 8 C.F.R. § 2.1.  The Secretary of DHS’s delegation of appellate jurisdiction to USCIS is DHS Delegation Number 0150.1(U) (effective March 1, 2003).

[10] [^] The Board has appellate jurisdiction over USCIS decisions on family-based immigrant petitions (Form I-130) and immigrant petitions for widowers (Form I-360).  See Chapter 1.6 for more information about the Board.

[11] [^] In most cases, there are no administrative appeal rights for denied Form I-485 applications.  See the USCIS webpage When to Use Form I-290B, Notice of Appeal or Motion for information about the types of Form I-485 applications that may be appealed.

[12] [^] 8 C.F.R. § 205.2(d).

[13] [^] 8 C.F.R. § 103.5(a)(1)(ii).

[14] [^] 8 C.F.R. § 103.5(a)(5).

[15] [^] 8 C.F.R. § 103.5(a)(2)-(3).

[16] [^] Since the AAO’s certification jurisdiction is broader than its appeal jurisdiction, some of the case types listed on the AAO Non-Precedent Decisions webpage are not appealable to the AAO but have been included because the AAO has issued decisions upon certification for those case types.

[17] [^] The regulations outlining EOIR’s role and authority are located at 8 C.F.R. §§ 1001-1337.


 

 

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