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Chapter 5. Certifications to the Administrative Appeals Office

5.1      Certifications Generally

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.[132]  This administrative procedure is known as “certification.”[133]  The regulations governing certifications are located at 8 C.F.R. § 103.4.

5.2      Jurisdiction

A USCIS official may certify case types that fall under the jurisdiction of the Board of Immigration Appeals (the Board) to the Board.[134]  A USCIS official may certify any other type of case to the AAO, including cases that do not convey appeal rights.[135]  Furthermore, a USCIS official may certify any decision type—including approvals, denials, and revocations—to the AAO.

5.3      Notice of Certification and Deadline for Submitting Briefs

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[136] of the right to submit a brief within 30 days of the notice (or 33 days if the notice is mailed).[137]  Any brief should be mailed directly to the AAO. See Chapter 3.8 for more information about preparing and submitting supporting briefs to the AAO.

There is no requirement to submit a brief.  Appellants that do not wish to submit a brief may mail or fax a letter to the AAO waiving the briefing period, or simply await the issuance of the AAO’s final decision.

5.4      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 where 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.

5.5      Requests for Evidence and Notices of Intent to Deny

Before issuing a final decision on a certification, the AAO may issue a request for evidence (RFE) or notice of intent to deny (NOID) the application or petition. For more information about RFEs and NOIDs, see Chapter 3.13.

5.6      Standard of Review

Decisions certified to the AAO are reviewed de novo. See Chapter 3.4 for more information about the AAO’s standard of review.

5.7      Burden of Proof

Appellants have the burden of proof to establish that they have satisfied all eligibility requirements for the benefit request. See Chapter 3.5 for more information about the burden of proof for immigration benefit requests.

5.8      Standard of Proof

Except where a different standard is specified by law, appellants must prove eligibility for requested immigration benefits by a preponderance of the evidence. See Chapter 3.6 for more information about the standard of proof for immigration benefit requests.

5.9      Effect of Filing a New Application or Petition while a Certification is Pending

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.

5.10    AAO Decision

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 Immigration and Nationality Act, the regulations, and applicable USCIS policy 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.[138] 
 
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 de novo 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.[139]  However, the appellant may not appeal the AAO’s decision to the AAO.

Footnotes


[132] [^] 8 C.F.R. § 103.4(a)(1).  Only a USCIS official may certify a case to the AAO.  The AAO will not consider a request from an appellant to certify a decision.  For more information regarding certifications to the AAO, see USCIS Policy Memorandum PM-602-0087, Certification of Decisions to the Administrative Appeals Office (AAO) (PDF, 125.43 KB) (July 2, 2013).

[133] [^] This chapter addresses the certification of initial decisions to the AAO for review.  The regulation at 8 C.F.R. § 103.4(a)(1) also permits USCIS to certify a case (or a class of cases) from one office to another for the issuance of a decision.  This “pre-decision” certification does not involve AAO appellate review and is not addressed in this Practice Manual.

[134] [^] 8 C.F.R. § 1003.1(c).  For decisions issued by USCIS, the Board has appellate jurisdiction over family-based immigrant petitions (Form I-130) and immigrant petitions for widowers (Form I‑360).  For more information about the Board, see Chapter 1.6.

[135] [^] 8 C.F.R. § 103.4(a)(4).  The AAO’s certification jurisdiction is broader than its appeal jurisdiction.  Therefore, some of the immigration benefit types listed on the AAO Non-Precedent Decisions webpage are not directly appealable to the AAO but are nonetheless included because the AAO has issued decisions upon certification for those categories.

[136] [^] For simplicity, this Practice Manual refers to all persons or entities with legal standing in a proceeding as “appellants,” including petitioners or applicants who receive a Notice of Certification. See Chapter 3.7(a) for more information about persons or entities with standing in a proceeding.

[137] [^] The regulations provide three additional days for an appellant to respond when a notice is served by mail.  8 C.F.R. § 103.8(b). See Chapter 3.7(c) for more information about calculating time periods.

[138] [^] 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 attorney or representative).

[139] [^] See Chapter 4 for information on motions to reopen or reconsider.