Untimely Appeals: Resurrecting a “Dead” Case

If the U.S. Citizenship and Immigration Services (USCIS) denies a petition or application, the petitioner or applicant generally has a deadline of thirty (30) days to file a motion to reopen or a motion to reconsider (MTR). In some cases, there is also an option to file an appeal with the Administrative Appeals Office (AAO) within the same 30-day timeframe. While it is important to meet these deadlines, failure to do so does not always mean the death of a case. In some situations, it is possible to file an untimely (i.e. late) appeal to challenge the denial well after the normal deadline has expired.

Background on USCIS Timeframes to File MTRs or Appeals

If an application or petition is denied by the USCIS, the agency is required to explain the basis for denial in writing. The notice must inform the individual of the right to file an MTR and, if applicable, an appeal. The notice must further indicate the number of days allowed for submission of the response (usually 30 or 33 days). A more thorough discussion of MTRs and appeals is available in the MurthyDotCom NewsBrief, Motions to Reopen / Reconsider and Appeal (10.Aug.2016).

Untimely Appeal Treated as Motion

Generally, if the deadline passes without the filing of a motion or appeal, any later-filed motion or appeal will be automatically rejected. However, a relatively unusual regulation states that if an untimely appeal meets the requirements of an MTR, “the appeal must be treated as a motion, and a decision must be made on the merits of the case.” In other words, no matter how long ago the USCIS issued a denial, the applicant may be permitted to file an untimely appeal and have it treated as an MTR, assuming it meets the substantive requirements pertaining to a motion.

Of course, if an appeal or MTR is warranted, it generally is advisable to file within the prescribed period indicated in the denial. Failure to do so may result in a host of serious immigration problems. However, in situations where, for whatever reason, this was not done, the ability to file an untimely appeal can provide a much-needed avenue for resolving immigration issues.

Substantive Reason Needed for Late Filed Appeal

Of course, the untimely appeal must include a substantive reason to reverse the denial. This means the appeal must provide either facts that were not previously provided to the USCIS or a legal argument explaining why the previous denial was made in error based on the law. Failing this, there generally would be no point in trying to file an untimely appeal.

Rule Applies to the USCIS

It is important to understand that the regulations pertaining to untimely appeals apply only to cases filed with the USCIS. The various statutes and regulations that govern applications filed with other entities, such labor certifications adjudicated by the U.S. Department of Labor, or visa applications filed at U.S. consulates (which are under the U.S. Department of State) differ, and fall beyond the scope of this article.

Conclusion

In the right situation, even serious immigration problems can be resolved through the use of the untimely appeal. However, determining whether this option is available in a particular case and, perhaps more importantly, whether there are better options that should be pursued, is not always easily answered. Individuals who wish to determine whether an untimely appeal may be a viable solution to their immigration situations should schedule a consultation with an attorney at the Murthy Law Firm to discuss the risks and options that may be available.

This NewsBrief has been updated for MurthyDotCom readers.

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