Notice of an Unfavorable Decision
Applications for visas, green cards, and citizenship are reviewed and approved by the United States Citizenship and Immigration Services. In the unfortunate event that the USCIS issues a denial to an application or petition, the applicant / petitioner may have the right to appeal the decision, which is to request a review of the decision from a higher legal authority. The notice of denial that advised the applicant / petitioner of the negative decision will contain information on the appeal process, including the forms which will be necessary to file the appeal.
Not All Decisions Can Be Appealed
In some cases, an applicant or petitioner may not have the right to appeal a decision. When this happens, the applicant or petitioner may still file a motion with the court to have the case reopened or reconsidered.
Unlike an appeal, a motion to reconsider or reopen a case does not send the case to a higher legal authority, but requests that the original authority take a second look at the case. While motions to reconsider may sound similar to motions to reopen, the two are actually very different. A motion to reconsider is an argument against a denial based on legal grounds that must argue why a decision was incorrect based on the evidence in the record at the time of the original proceeding or review. Motions to reopen, however, are arguments against a denial based on factual grounds, like a change in circumstances or the availability of new evidence. This type of decision takes into account the new circumstance or evidence and issues a decision with the new information in mind.
In most cases, appeals, motions to reopen, and motions to reconsider, are reviewed on paper. This means that most of the chances of a decision being reversed by an appeal or motion will depend on the writing ability of the person filing the paperwork. An inability to articulate why an error was made or why new information should be considered could result in an affirmation of the original decision. This is why individuals who want to file an appeal or motion against a negative application or petition decision should work with an experienced immigration attorney to have a decision appealed or a motion filed. Immigration attorneys are well versed in helping clients appeal immigration decisions and will generally be much better at explaining a previous error or in explaining the importance and relevance of changed circumstances or new evidence. Since they don’t have many opportunities to appeal a decision, or limitless chances to file a motion to reconsider or reopen, individuals who receive a notice of denial regarding an application or petition are encouraged to rely on the skill and experience of an immigration attorney in dealing with the issue.
Even if the decision following an appeal or motion is to uphold the original determination, which is to make no change to the original decision, the applicant or petitioner may have additional forms of recourse, but this will mostly depend on the specific facts of the case.