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Chapter 3. Appeals

3.1       Overview

The Administrative Appeals Office (AAO) conducts appellate review of immigration benefit requests within its jurisdiction. The regulations for appeals to the AAO are located at 8 C.F.R. § 103.3.

The AAO generally issues its appellate decisions as non-precedent decisions.  Non-precedent decisions are binding on the parties involved in the case, but do not create or modify USCIS policy or practice. 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. In addition, the Secretary of Homeland Security may, with the Attorney General’s approval, designate an AAO decision as a precedent. Precedent decisions must be followed by Department of Homeland Security (DHS) employees and provide guidance to the public on the proper interpretation and administration of immigration law and policy.

3.2      Jurisdiction

The AAO has appellate jurisdiction over approximately 50 different immigration case types filed with U.S. Citizenship and Immigration Services (USCIS) field offices,[45] as well as certain Immigration and Customs Enforcement (ICE) determinations. For more information about the AAO’s jurisdiction, see Chapter 1.4.

However, even for case types under its jurisdiction, the AAO does not consider appeals in the following scenarios:

(a)      Rejected Applications and Petitions

A field office’s rejection of an immigration benefit request may not be appealed to the AAO.[46]  When USCIS rejects an immigration benefit request, it does not retain a filing date, and there is no merits-based decision for the AAO to review.

(b)      Abandoned Applications and Petitions

Field office denials of an immigration benefit request as abandoned, administratively terminated, or administratively closed may not be appealed to the AAO.[47]  However, appellants may file a motion to reopen the field office decision.

(c)      Withdrawn Applications and Petitions

A field office’s acknowledgement of a withdrawal of an application or petition may not be appealed to the AAO.[48]

(d)      Denied Motions to Reopen or Reconsider

An appellant[49]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.[50]

(e)      AAO Decisions

An appellant may not appeal an unfavorable AAO decision (whether on an appeal, motion, or certification).  Instead, the appellant may file a motion to reopen or reconsider the AAO decision. See Chapter 4 for more information about motions.

3.3      Representation by an Attorney or Other Representative

An appellant may be represented by an attorney or other representative. See Chapter 2 for more information about representing parties before the AAO.[51]

3.4      De Novo Standard of Review

The AAO is independent of the field offices, and exercises de novo review of all issues of fact, law, policy, and discretion.  This means that, on appeal, the AAO looks at the record anew and its decision may address new issues that were not raised or resolved in the prior decision.[52]

3.5      Burden of Proof

The appellant has the burden of proof to establish eligibility for the requested immigration benefit.[53]  The appellant’s burden includes the burden of production and the burden of persuasion.[54]

The appellant must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of the filing of the immigration benefit request and continuing through adjudication.[55]

3.6      Standard of Proof

Except where a different standard is specified by law, the appellant must prove eligibility for the requested immigration benefit by a preponderance of the evidence.[56]

Under the preponderance of the evidence standard, the evidence must demonstrate that the appellant’s claim is “probably true” based on the factual circumstances of the individual case.[57]

If the appellant submits relevant, probative, and credible evidence that leads the AAO to believe that the claim is “more likely than not” or “probably true,” the appellant has satisfied the standard of proof.  Stated another way, the appellant must establish that there is greater than a 50% chance that a claim is true.

In adjudicating an appeal under the preponderance of the evidence standard, the AAO will examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.[58]

3.7      Filing Requirements for Appeals

(a)      Parties Eligible to File an Appeal

To appeal an unfavorable decision to the AAO, a person or entity must have legal standing.  A person or entity with legal standing in a proceeding is called an “affected party.” 

USCIS regulations provide that a petitioner or an applicant has legal standing in an appeal, motion, or certification before the AAO, while the beneficiary of a petition or another third party does not.[59]

However, beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers and who have properly requested to do so under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), are considered affected parties for revocation proceedings relating to their visa petitions.  USCIS must make a favorable determination concerning the beneficiary’s porting eligibility in order for the beneficiary to be eligible to participate in the revocation proceeding.  For more information on this issue, see Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017) and USCIS Policy Memorandum PM-602-0152, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc. (PDF, 124.45 KB) (Nov. 11, 2017).

If the person or entity submitting an appeal does not have legal standing, USCIS will reject the appeal as improperly filed and will not refund any previously accepted filing fee.[60]

(b)      Form I-290B, Notice of Appeal or Motion

An appellant must use Form I-290B, Notice of Appeal or Motion, to file appeals with the AAO.[61]  Form I-290B and the instructions for completing the form are available to review, print, and download at www.uscis.gov/i-290b.[62]  In addition, an appeal must contain a statement explaining the basis for the appeal, as directed by Form I-290B and the accompanying instructions.  See Chapter 3.7(f) for more information about this statement.

(c)      Time Period for Filing

For most appeals, appellants must file an appeal on Form I-290B within 30 calendar days after personal service of the decision, or 33 calendar days if the decision was mailed.[63]

An appellant must file an appeal of a USCIS decision to revoke the approval of an immigrant petition upon notice under 8 C.F.R. § 205.2 within 15 calendar days after personal service of the decision,[64]or 18 calendar days if the decision was mailed.[65]

(1)      Decision Issuance Date

The service of notices and decisions by mail is complete upon the date of mailing and not the date the appellant receives the notice or decision.[66]

(2)      Appeal Filing Date

The filing date for an appeal is the day the USCIS location designated for filing the appeal receives it, not the date the appellant mailed the appeal.[67]

(3)      Computing the Time Period to File an Appeal

When computing the period of time for filing an appeal, the following factors apply:

(4)      Untimely Appeal

An appeal which is not filed within the time allowed must be rejected as improperly filed.[69]  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.[70]

(d)      Where to File

Do not mail appeals directly to the AAO.  The AAO’s mailing address is for briefs and evidence supplementing a pending appeal, and for other correspondence related to existing matters. The correct addresses for filing appeals are listed at www.uscis.gov/i-290b-addresses.  Any appeals mailed to the AAO will be rejected and returned as not properly filed.[71]

(e)      Filing Fee and Fee Waiver Requests

Appeals must contain the proper filing fee or a fee waiver request.  Do not mail filing fees directly to the AAO.  Filing fees are listed on the USCIS Forms webpage and at the What is the Filing Fee? section of the Form I-290B instructions (PDF, 254.78 KB).

In certain categories of cases, USCIS may waive the fee for Form I-290B if the appellant can show an inability to pay.  For information about which fees USCIS may waive and how to request a fee waiver, see Form I-912, Request for Fee Waiver (PDF, 486.04 KB) and the Form I-912 instructions (PDF, 255.77 KB), 8 C.F.R. § 103.7(c), and www.uscis.gov/fees.

(f)      Statement or Brief Identifying an Error

An appeal must specifically identify any erroneous conclusion of law or statement of fact in the unfavorable decision on Form I-290B, in a written statement attached to Form I‑290B, in a brief, or in another document submitted with the appeal.

General assertions that fail to specifically identify an error may result in the AAO summarily dismissing an appeal.[72]  The appellant must state any arguments it wishes the AAO to consider on appeal, even if the arguments were previously raised in earlier filings before the field office.

There are no specific formatting rules related to statements or briefs. See Chapter 7.3 for suggested guidelines.  The AAO encourages appellants to provide as much detail as possible in the appeal statement or brief in order to apprise the AAO of the specific basis of the appeal.

3.8      Supplemental Briefs and Evidence

Appellants may, but are not required to, submit a supplemental brief or additional evidence.  If the appellant elects not to file a brief, the appeal must otherwise specifically identify any erroneous conclusion of law or fact.  An appellant may do so through a statement accompanying Form I-290B.

On Form I-290B, appellants must indicate whether they:

Appellants who elect on Form I-290B to submit a supplemental brief or additional evidence within 30 days of filing the appeal must mail the brief or additional evidence directly to the AAO. See Chapter 6.1 for the AAO’s mailing address.

Any supplemental brief or evidence must specifically reference the Receipt Number of the underlying benefit request and any Alien Registration Number (A-Number).

While appellants may submit supplemental materials after filing the appeal, the submission of additional materials complicates USCIS’s ability to match the appeal with those materials in time for the field office’s initial review of the appeal (initial field review). To ensure that the field office has a meaningful opportunity to consider supplemental materials during initial field review, the AAO recommends that appellants submit supplemental materials concurrently with the appeal. See Chapter 3.9 for information on initial field review.

(a)      Brief Writing and Citation Guidelines

See Chapter 7.3 for suggested brief writing and citation guidelines.

(b)      Supporting Evidence

In general, an appellant cannot meet the burden of proof simply by claiming a fact to be true without supporting documentary evidence.[73]  An appellant must support assertions with relevant, probative, and credible evidence.[74]

The AAO will accept new evidence on appeal, but the evidence need not be new or previously unavailable.

That said, an appellant must be eligible for the requested immigration benefit at the time of filing and remain eligible through the adjudication process.[75]  An appellant who only satisfies the requirements of an immigration benefit after filing an application or petition is not eligible for that benefit.

For certain protection-related benefit categories (including, but not limited to, asylum applications, Violence Against Women Act (VAWA) self-petitions, T visa applications, and U visa petitions) where it may be difficult for some appellants to secure corroborative evidence, credible testimonial evidence may suffice to meet the burden of proof.[76]
   
Assertions by representatives do not constitute evidence.  Counsel’s statements must be substantiated in the record with independent evidence, which may include affidavits and declarations.[77]

(1)      Photocopies

Although photocopies of documents are generally permissible, the AAO may request that an appellant submit an original document for review.[78]  An original document submitted in response to such a request will be returned when the adjudication is complete.  Failure to submit a requested original document may result in the dismissal of an appeal.

If an appellant submits original documents on appeal when not specifically requested, the documents may remain a part of the record, and USCIS will not automatically return the originals.[79]

(2)      Translations

Any document in a foreign language must be accompanied by a full English language translation.  The translator must certify that the English language translation is complete and accurate, and that the translator is competent to translate from the foreign language into English.[80]

(3)      Unavailable Evidence

The nonexistence or other unavailability of required evidence creates a presumption of ineligibility for the requested immigration benefit.[81]

If a required document does not exist or cannot be obtained, an appellant must generally:

  • Demonstrate its nonexistence or unavailability; and
  • Submit relevant secondary evidence.

If relevant secondary evidence also does not exist or cannot be obtained, the appellant must generally:

(i)      Demonstrating that a Government Record is Unavailable

Where a government record does not exist, the appellant must submit an original written statement on the letterhead of the appropriate government entity establishing its unavailability and stating the reason it does not exist and whether similar records for the time and place are available.[82]

However, a statement from a foreign government is not required if the Department of State’s Foreign Affairs Manual indicates this type of document generally does not exist.[83]

Appellants who are unable to acquire a necessary document or statement from the relevant foreign authority may submit evidence that they made repeated good faith attempts to obtain the required document or statement.  However, if the AAO determines that such documents or statements are generally available, it may require that an appellant submit the required document or statement.

(4)      Inconsistencies in the Record

An appellant must resolve any material inconsistencies in the record by competent, objective evidence.  Unresolved material inconsistencies may lead the AAO to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit.[84]

(c)      Requests to Extend the Deadline for Submitting Briefs or Additional Evidence

On Form I-290B, appellants may indicate that they will submit a brief or additional evidence within 30 days of filing the appeal.  This 30-day briefing period is automatically granted by checking the appropriate box on Form I-290B.  It does not require additional AAO approval.

If, however, an appellant requires additional time beyond the original 30 days, the AAO may extend the deadline for submitting briefs for good cause shown.[85]

Appellants may mail or fax extension requests directly to the AAO within 30 calendar days of filing the appeal.  See Chapter 6.1 for the AAO’s contact information.  The request should contain the specific reasons for seeking an extension.

If the AAO approves an extension request, it will generally authorize an additional 30-day briefing period.

Filing an extension request does not automatically extend the 30-day deadline for submitting briefs.  Unless and until the AAO grants an extension request, the existing deadline to submit a brief or additional evidence remains unchanged.

(d)      Requests to Submit Supplemental Information after the Deadline

The AAO has the discretion to accept or reject supplemental information submitted after the deadline for submitting briefs.

To supplement a pending appeal with new evidence after the deadline, the appellant should add “SUPPLEMENTAL EVIDENCE” in all capital letters in the subject line of the cover letter, and include the requested information for case-specific correspondence as set forth at Chapter 6.1(b).

(e)      Amicus Curiae

An amicus curiae (friend of the court) brief is a written statement of law or legal opinion from a person or organization that is not a party in a case but may have a strong interest in the issue being considered.

The AAO may request the submission of amicus curiae briefs to inform its review of complex or unusual issues of law or policy.  The AAO will post solicitations for amicus curiae briefs on the AAO webpage.  The solicitation will include instructions on brief format, page length, and the deadline for submission.
 
A person or organization that wishes to submit an unsolicited amicus curiae brief may coordinate with the appellant.  An amicus curiae brief that has not been solicited by the AAO must be submitted by the appellant.[86]

The AAO limits amicus curiae to the filing of briefs.  Since an appearance as amicus curiae is not a request to represent a party before the AAO, no notice of representation (Form G-28) is required.

(f)      Oral Argument

The AAO generally adjudicates decisions based on the record of proceedings without oral argument.  However, the AAO may grant a written request for oral argument when a case involves an issue of particular significance and the AAO determines that it would benefit from supplemental argument.  For more information on requests for oral argument, see Chapter 6.5.

3.9      Initial Field Review

Initially, the USCIS field office that denied the immigration benefit request will review the appeal and determine whether to take favorable action and grant the benefit request.[87]

During this initial field review, the field office may:

  • Treat the appeal as a motion to reopen or reconsider and approve the application or petition; or
  • Forward the appeal and the related record of proceedings to the AAO.

The initial field review should be completed within 45 days.

For more information about initial field review, see USCIS Policy Memorandum PM-602-0124, Initial Field Review of Appeals to the Administrative Appeals Office (PDF, 297.5 KB) (Nov. 4, 2015).

3.10    Expedite Requests

An appellant may request expedited processing of an appeal.  For more information about expedite requests, see Chapter 6.3.

3.11    Withholding Adjudication

The AAO may temporarily withhold the adjudication of an appeal if there is an ongoing investigation relating to the requested benefit, and the disclosure of such information would prejudice the investigation.[88]

A delay in adjudication, however, does not mean that a case is under investigation.  There are many reasons why a case may take longer to complete than normal processing times.  Please contact the AAO for status information on cases outside of normal processing times.  See Chapter 6.2 for information about submitting status inquiries for pending appeals.

3.12    Withdrawing an Appeal

At any time before the AAO makes a decision, appellants may withdraw an appeal by submitting a written request by mail or fax directly to the AAO.[89]  See Chapter 6.1 for the AAO’s contact information.

No specific form is required.  The appellant should add “WITHDRAWAL OF APPEAL” in all capital letters in the subject line of the cover letter, and include the requested information for case-specific correspondence as set forth at Chapter 6.1(b).

The AAO may accept a withdrawal request from a representative if the record contains a valid Form G-28 establishing representation of the appellant.

The AAO will acknowledge the withdrawal request in writing.  Appellants may not retract withdrawals, and may not file a motion to reopen or reconsider a withdrawal.[90]

3.13    Requests for Evidence and Notices of Intent to Dismiss

If the evidence in the record does not establish eligibility for the requested immigration benefit, the AAO may:[91]

  • 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.[92]

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.[93]  See Chapter 3.7(c) for information on how to calculate the time periods.

(a)      Derogatory Information

If the AAO plans to issue an unfavorable decision based on derogatory information of which the appellant is unaware, the AAO will issue a NOID to advise the appellant of this information and to offer an opportunity to rebut the information and present other information before the AAO makes a decision.

(b)      Responding to an RFE or NOID

When responding to an RFE or NOID, an appellant must timely submit all requested materials together at one time, along with the original RFE or NOID.

If the appellant submits only some of the requested evidence, the AAO will consider the response as a request for a decision on the record.  However, failure to submit all requested evidence that is material to the requested immigration benefit is grounds for dismissing the appeal.

If the appellant fails 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.
[94]

3.14    AAO Decision

The AAO will serve the appeal decision by mail on the appellant and any representative of record.[95]  The appeal decision is effective and final on the date that the AAO issues it, unless and until the AAO reopens or reconsiders the decision on motion or a federal court modifies or overrules it.  The filing of a subsequent motion to reopen or reconsider the AAO’s decision does not affect the finality of the decision.[96]

AAO decisions may order any action consistent with its authority under the Act, the regulations, and applicable USCIS policy as is appropriate and necessary for the disposition of the appeal.  Common appeal dispositions are described below.

(a)      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.[97]

Other than its final decision, the AAO does not issue evidence of an approved benefit request (such as a Form I-797, Notice of Action). The AAO also does not notify the Department of State (DOS) that a benefit request has been approved.  Instead, the office that made the underlying unfavorable decision is responsible for issuing any documents relating to the approved benefit request and notifying DOS, when applicable.

(b)      Dismissal

The AAO may dismiss an appeal when an appellant fails to establish eligibility for the requested immigration benefit, when the appeal is moot (e.g., the appellant obtained the desired immigration status through other means), or when the appellant withdraws the appeal.[98]  The AAO may also dismiss an appeal as abandoned when the appellant fails to respond to an RFE or NOID by the required date.

Because the AAO has de novo review authority, a decision dismissing an appeal may contain new grounds of ineligibility not addressed in the initial decision. See Chapter 3.4 for more information about the AAO’s standard of review.

While an AAO decision to dismiss an appeal may not be appealed to the AAO, an appellant may file a motion to reopen or reconsider the decision. See Chapter 4 for more information about motions.

(c)      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.[99]

Appeals of denied benefit requests under the legalization provisions of sections 210 and 245A of the Act may be summarily dismissed if the appeal fails to state the reason for appeal; is filed solely on the basis of a denial for failure to file the application for adjustment of status under sections 210 or 245A of the Act in a timely manner; or is patently frivolous.[100]

(d)      Reject

The AAO will reject improperly filed appeals.  Rejected appeals do not retain a filing date.[101]

Improperly filed appeals may include the following:

  • Untimely filed;[102]
  • Missing or incorrect filing fee;[103]
  • Case types that do not fall under the AAO’s jurisdiction, including appeals of AAO decisions;
  • The party submitting the appeal does not have legal standing in the proceeding;[104]
  • Form I-290B is not signed;[105]and
  • Form I-290B is signed by a representative, but there is no accompanying Form G-28.[106]

(e)      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 de novo 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.

In certain circumstances, an AAO decision that remands a case for further action may also order the officer to certify the decision back to the AAO if the new decision is unfavorable to the appellant. This certification order permits the appellate review of a new, unfavorable decision without requiring the appellant to pay a second appeal filing fee. See Chapter 5 for more information on certifications.

3.15    Non-Precedent, Adopted and Precedent Decisions

(a)      Non-Precedent Decisions

The AAO generally issues non-precedent decisions.[107]  Non-precedent decisions apply existing law and policy to the facts of an individual case. The decision is binding on the parties to the case, but does not create or modify agency guidance or practice. The AAO does not announce new constructions of law or establish agency policy through non-precedent decisions.[108]  As a result, non-precedent decisions do not provide a basis for applying new or alternative interpretations of law or policy.[109] 
   
Non-precedent decisions (redacted of personally identifiable information and other sensitive material) are available online at the AAO Non-Precedent Decisions webpage.[110]

DHS officers may not rely upon or cite to non-precedent decisions as legal authority in other decisions. Appellants who nonetheless wish to refer to a non-precedent AAO decision in an unrelated matter should attach a copy of that decision to their submission and explain how the facts in that case are analogous to their own case.

(b)      Adopted Decisions

USCIS occasionally “adopts” an AAO non-precedent decision to provide policy guidance to USCIS employees in making determinations on applications and petitions for immigration benefits. Unlike precedent decisions, adopted decisions do not establish policy that must be followed by personnel outside of USCIS.    

Adopted decisions are available online at the Adopted AAO Decisions webpage.

(c)      Precedent Decisions

Certain AAO decisions may be designated as precedent by the Secretary of Homeland Security, with the Attorney General’s approval.[111]

Precedent decisions are administrative decisions of the AAO, the Board of Immigration Appeals, and the Attorney General, which have been designated as precedent for future proceedings. AAO precedent decisions announce new legal interpretations or policy, or reinforce existing law or policy by demonstrating its application to the facts of a specific case.  Precedent decisions must be followed by all DHS employees.

USCIS, petitioners, and applicants may cite and rely upon a precedent decision as authority in later cases involving the same issue, unless a later statute, regulation, precedent decision, or binding federal court decision has modified or overruled the precedent decision.

The Executive Office for Immigration Review (EOIR) publishes all precedent decisions in bound volumes entitled Administrative Decisions Under Immigration and Nationality Laws of the United States.  Precedent decisions are also available online at EOIR’s Virtual Law Library.

(d)      Distinguishing Between Precedent and Non-Precedent Decisions

Precedent decisions are recognizable by their citation format.  Precedent decisions are generally designated using the phrase “Matter of,” followed by the name of the party. Next are the volume and page number where the print version of the decision is published. Citations conclude with a parenthetical statement containing the office that authored the decision and the year of publication.

The following are examples of precedent decision citations:

Conversely, AAO non-precedent decisions are not considered “published” as that term is used at 8 C.F.R. § 103.3(c).  Each AAO non-precedent decision issued since July 2, 2013, clarifies that it is not a precedent.

On September 1, 2015, the AAO introduced a citation string for its non-precedent decisions. AAO non-precedent decisions can now be cited to using the citiation string located at the end of each decision. This new decision format applies to decisions dated September 1, 2015, and later.  Older decisions posted on the AAO website cannot be retrofitted with a citation string.

Citations now begin with the phrase “Matter of,” followed by an abbreviated name of the party. The abbreviated name is followed by an identification number (ID#). Citations conclude with a parenthetical containing “AAO” and the date of publication.

The following is an example of the current AAO non-precedent decision citation format:

An adopted AAO decision is identified by a unique citation format as well as by a USCIS cover memorandum announcing its designation as an adopted decision. 

The following is an example of the current adopted AAO decision citation format:

(e)      Requests to Reissue a Non-Precedent Decision as an Adopted or Precedent Decision

The AAO will consider written requests from the public to reissue a non-precedent decision as an adopted or precedent decision.  No specific form is required. The request should explain why the non-precedent decision warrants adoption or designation as a precedent decision. The request should include a copy of the non-precedent decision, or reference the decision by its A-Number or Receipt Number, and the date of the decision. See Chapter 6.1 for how to send a written correspondence to the AAO.

Footnotes


[45] [^] For the purposes of this Practice Manual, the term “field office” is used 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.

[46] [^] 8 C.F.R. § 103.2(a)(7)(iii).

[47] [^] 8 C.F.R. § 103.2(b)(15).

[48] [^] Id.

[49] [^] For simplicity, this Practice Manual refers to all affected parties (i.e., persons or entities with legal standing in a proceeding) as “appellants.”

[50] [^] 8 C.F.R. § 103.5(a)(6).

[51] [^] This Practice Manual uses the term “representative” to refer to all persons authorized to represent appellants before the AAO.

[52] [^] The AAO applies USCIS policy and legal interpretations to its decisions. See USCIS Policy Memorandum PM-602-0086.1, Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) (PDF, 98.58 KB) (Nov. 18, 2013).

[53] [^] Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). When the approval of an immigration benefit request is discretionary, an appellant must also establish that a favorable exercise of discretion is warranted.

[54] [^] The burden of production is the obligation to submit enough evidence to have the issue decided on the merits, while the burden of persuasion is the obligation to persuade the agency that the final decision should be favorable to the appellant.  See Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272-80 (1994).

[55] [^] Section 291 of the Act, 8 U.S.C. § 1361; 8 C.F.R. § 103.2(b)(1); see also Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) (stating that the burden to establish eligibility “is not discharged until the visa is issued”).

[56] [^] Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010).  For more information about the discussion in this section, see Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989); and Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805 (AAO 2012).

[57] [^] Matter of Chawathe, 25 I&N at 376.

[58] [^] Evidence is relevant if it is logically connected to proving or disproving the case at hand, probative if it tends to prove or disprove a fact or issue, and credible if it is worthy of belief.  See Black’s Law Dictionary 636, 1323, 1404 (9th ed. 2009).

[59] [^] 8 C.F.R. § 103.3(a)(1)(iii)(B).  “Petitioner,” “self-petitioner,” “applicant,” and “beneficiary” are precise, legal terms, and an individual may fit the definition for more than one term in different but related benefit requests.  For example, a foreign national who is the “beneficiary” of a Form I-140, Immigrant Petition for Alien Worker, filed by a U.S. employer, does not have standing to appeal the denial of the petition.  The appeal must be filed by the U.S. employer “petitioner,” even if the foreign national is also the “applicant” for a related immigration benefit request, such as a Form I-485, Application to Register Permanent Residence or Adjust Status. 

[60] [^] 8 C.F.R. § 103.3(a)(2)(v)(A).

[61] [^] Appellants must use Form I-290B to file appeals of legalization applications filed under section 1104 of the Legal Immigration Family Equity Act and its amendments.  For appeals of denied immigration benefit requests under the legalization provisions of sections 210 and 245A of the Immigration and Nationality Act (the Act), appellants must use Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Act.  8 C.F.R. § 103.3(a)(3)(ii).  Form I-694 and the accompanying instructions are available at www.uscis.gov/i-694.

[62] [^] Every benefit request submitted to USCIS must be executed and filed in accordance with the form instructions.  Form instructions are incorporated into the regulations under 8 C.F.R. § 103.2(a)(1).

[63] [^] 8 C.F.R. §§ 103.3(a)(2)(i).  If a decision is mailed, three days are automatically added to the 30-day filing period.  8 C.F.R. § 103.8(b).

[64] [^] 8 C.F.R. § 205.2(d) (revocation on notice).  There are no appeal rights for automatic revocations under 8 C.F.R. § 205.1.

[65] [^] If a decision is mailed, three days are automatically added to the 15-day filing period.  8 C.F.R. § 103.8(b).

[66] [^] Id.  Routine service consists of mailing the notice or decision by ordinary mail addressed to the appellant and any representative of record at his or her last known address.  8 C.F.R. § 103.8(a)(1)(i).

[67] [^] 8 C.F.R. § 103.2(a)(7)(i).

[68] [^] 8 C.F.R. § 1.2.  Legal public holidays are listed at 5 U.S.C. § 6103.

[69] [^] 8 C.F.R. § 103.3(a)(2)(v)(B)(1).

[70] [^] 8 C.F.R. § 103.3(a)(2)(v)(B)(2).

[71] [^] The AAO has appellate jurisdiction over ICE determinations that an immigration bond has been breached.  An appellant must file immigration bond breach appeals under the terms described on ICE Form I-323, Notice-Immigration Bond Breached, which ICE sends to the appellant.

[72] [^] 8 C.F.R. § 103.3(a)(1)(v).

[73] [^] See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

[74] [^] Id.

[75] [^] 8 C.F.R. § 103.2(b)(1).

[76] [^] For VAWA self-petitions, T visa applications, and U visa petitions, USCIS will consider “any credible evidence.”  See sections 204(a)(1)(J), 214(p)(4) of the Act, 8 U.S.C. §§ 1154(a)(1)(J), 1184 (p)(4); 8 C.F.R. § 214.11(d)(3).

[77] [^] Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)).

[78] [^] 8 C.F.R. § 103.2(b)(5).

[79] [^] Use Form G-884, Return of Original Documents, to request the return of original documents.

[80] [^] 8 C.F.R. § 103.2(b)(3).

[81] [^] For more information about the discussion in this section, see 8 C.F.R. § 103.2(b)(2).

[82] [^] While the AAO considers any credible evidence when adjudicating VAWA, T and U cases, it may determine that a government record (e.g., a conviction record) is necessary to the adjudication.

[83] [^] The Bureau of Consular Affairs Visa Reciprocity webpage contains information about the availability of certain foreign government records on a country-by-country basis.

[84] [^] Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

[85] [^] 8 C.F.R. § 103.3(a)(2)(vii).

[86] [^] Persons or organizations submitting unsolicited amicus curiae briefs should label the briefs “REQUEST TO APPEAR AS AMICUS CURIAE,” and provide the requested information for case-specific written correspondence listed at Chapter 6.1(b).  The brief should also contain a statement describing the person or organization submitting the brief and the nature of its interest in the issue. See Chapter 7.3 for suggested brief writing and citation guidelines.

[87] [^] 8 C.F.R. § 103.3(a)(2)(ii)-(iv).

[88] [^] 8 C.F.R. § 103.2(b)(18).

[89] [^] 8 C.F.R. § 103.3(a)(2)(ix).  The AAO will treat a request to withdraw the underlying immigration benefit request as a request to withdraw the appeal.

[90] [^] 8 C.F.R. § 103.2(b)(6).

[91] [^] See 8 C.F.R. § 103.2(b)(8), (11), (13)-(14), (16).  For more information about RFEs and NOIDs, see USCIS Policy Memorandum PM-602-0085, Requests for Evidence and Notices of Intent to Deny (PDF, 77.3 KB) (June 3, 2013).

[92] [^] The AAO may “dismiss” an appeal, while field offices may “deny” an application or petition.  Accordingly, the AAO may issue a notice of intent to dismiss during the adjudication of an appeal, while a field office may issue a notice of intent to deny during the adjudication of an application or petition.  In both cases, this Practice Manual refers to these notices as NOIDs, and the same regulatory provisions apply.

[93] [^] If an RFE or NOID is mailed, three days are automatically added to the response deadline.  8 C.F.R. § 103.8(b).

[94] [^] Appellants may request special expedited review of an unfavorable AAO decision based solely on the failure to respond to an RFE or NOID, if one of the following criteria apply:

  • There is evidence that the AAO received the appellant’s timely response to the RFE or NOID.
  • There is evidence in a USCIS system that the RFE or NOID was not sent to the appellant or, if there is a valid Form G-28 on file, to the attorney or representative of record.
  • The appellant properly submitted a change of address prior to the issuance of the RFE or NOID, but the AAO sent the RFE or NOID to a previous or improper address.

For AAO decisions, this expedited review may be requested by calling the AAO. See Chapter 6.1 for the AAO’s contact information.  The AAO will make every effort to take action on the request within five business days.

For more information (including instructions on how to request special expedited review of USCIS field office decisions), see USCIS Instructional Memorandum IM-602-0059, Expedited Case Review Process for Specifically-Defined Administrative Errors (PDF, 1.2 MB) (Mar. 23, 2012).

[95] [^] 8 C.F.R. § 103.3(a)(2)(x), (3)(iii); see also 8 C.F.R. § 103.8(a)(1)(i) (routine service consists of mailing the notice by ordinary mail addressed to the appellant and his or her representative).

[96] [^] See 8 C.F.R. § 103.5(a)(1)(iv).

[97] [^] 8 C.F.R. § 103.2(b)(1).  The AAO will sustain an immigration bond breach appeal if it determines that the obligor has not substantially violated the stipulated conditions of the bond.  See 8 C.F.R. § 103.6(e).

[98] [^] The AAO will dismiss an immigration bond breach appeal if it determines that there has been a substantial violation of the stipulated conditions of the bond by the obligor.  8 C.F.R. § 103.6(e).  However, the substantial performance of all of the conditions imposed by the terms of a bond shall release the obligor from liability.  See 8 C.F.R. § 103.6(c)(3).  For legalization appeals, a decision dismissing the appeal includes a final notice of ineligibility.  8 C.F.R. § 103.3(a)(3)(iii).

[99] [^] 8 C.F.R. § 103.3(a)(1)(v).

[100] [^] 8 C.F.R. § 103.3(a)(3)(iv).

[101] [^] 8 C.F.R. § 103.2(a)(7)(iii).

[102] [^] 8 C.F.R. § 103.3(a)(2)(v)(B).

[103] [^] Id.; see also 8 C.F.R. § 103.3(a)(2)(i).

[104] [^] 8 C.F.R. § 103.3(a)(2)(v)(A).

[105] [^] 8 C.F.R. § 103.2(a)(7)(i).

[106] [^] 8 C.F.R. § 103.3(a)(2)(v)(A)(2).

[107] [^] The AAO uses the term “non-precedent” instead of “unpublished” to avoid confusion about the status of non-precedent decisions that are discussed in immigration periodicals or available on government and non-government websites.

[108] [^] The AAO defers to USCIS Policy Memoranda to prescribe agency policy and to the USCIS Office of Chief Counsel on matters of legal interpretation.

[109] [^] For more information about AAO precedent and non-precedent decisions, see USCIS Policy Memorandum PM-602-0086.1, Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) (PDF, 98.58 KB) (Nov. 18, 2013).

[110] [^] Because the AAO’s certification jurisdiction is broader than its appeal jurisdiction, some of the case types listed on the non-precedent decision webpage are not appealable to the AAO but have been included because the AAO has issued decisions upon certification for those categories.  See Chapter 5 for more information on certifications.

[111] [^] See 8 C.F.R. § 103.3(c).