Four Lessons on Instructions that Denials Carry09 Jul 2018
Foreign nationals frequently are confused by the specific instructions found in certain denial decisions issued in response to their immigration filings. The standard language used by these government agencies is often wrongly perceived as either requiring or recommending specific action. The terminology commonly used by government agencies when advising individuals of the option to challenge a denial is discussed here.
Right to Appeal and Right to File a Motion
As a preliminary matter, it is important to understand that, while some denials may be appealed, others are not appealable. Of the case types that permit appeals, most familiar to MurthyDotCom readers are: H1B, L-1, and certain other employment-based nonimmigrant categories (form I-129), and immigrant worker petitions (form I-140). Appeals are also available on the refugee travel document and reentry permits (form I-131), special immigrants and VAWA applications (form I-360), as well as cases filed using forms I-600, I-821, I-526, and N-565.
Most other types of cases do not allow for appeals, but could be challenged by the use of a motion to reopen or reconsider. For example, if an application to adjust status (I-485) is denied, there is no appeal option, but the applicant may file a motion to reopen or a motion to reconsider the denial. Upon the denial of an immigrant petition (I-140), the petitioner may either file an appeal or a motion to reopen or motion to reconsider. For a nonimmigrant petition (I-129), if the entire petition is denied, an appeal can be filed; but, if only the petition is approved, while an accompanying change or extension of status request is denied, this status portion of the petition typically can be challenged only by filing a motion.
Lesson One: Possible Motion to Reopen or Reconsider if No Appeal Allowed
As stated, if an I-140 is denied, the petitioner has the option of filing an appeal or a motion to reopen or reconsider. The U.S. Citizenship and Immigration Services (USCIS) advises of one’s right to appeal (but not the right to file a motion) when an I-140 denial is issued. The wording used in I-485 denials states that the decision cannot be appealed. This confuses some applicants who interpret this to mean that there is no way to challenge the denial of the I-485 application. In this case, an applicant should not be misled by the language that states, “there is no appeal from this decision.” Action still may be taken that ultimately could result in overcoming the original denial decision and obtaining an approval.
Lesson Two: Standard Language Does Not Mean an Approval will be Issued
The Murthy Law Firm receives many inquiries asking for help with the filing of appeals. People are often surprised to learn of potential options available, other than appeals. In some cases, for example, it can be better to re-file a case than to appeal the denial.
Confusion sometimes stems from the advisory language used by the government to inform applicants or petitioners of their right to appeal or file a motion. It is not unusual for a petitioner or applicant to interpret this language as an invitation or suggestion to file an appeal or a motion. It is incorrectly understood to be indicative of the government’s willingness to approve the case, provided an appeal or motion is filed.
An appeal or motion can only succeed if one is able to establish that the decision by the government was wrong. When the government informs the applicant or the petitioner about appeals and motions, it is only because such advisements of certain legal rights are required by law. The government is neither prompting nor requesting such action, and it is most certainly not conceding that the decision is wrong and, thus, should be appealed.
Lesson Three: Same Concept Applies to Waiver Advisement
The same concept applies to the information provided regarding one’s option to file a waiver of inadmissibility. This language typically is included with visa denial decisions, in which the applicant has a legal bar that does not permit entry to the United States. The standard language used by U.S. consulates notifies the visa applicant that s/he falls within a particular category of foreign nationals who are inadmissible to the United States. For some categories, the language advises that a waiver is needed for admission to be granted.
The waiver advisement language is often misconstrued to mean that one need only file some additional form or request, and the visa will be granted. The requirements for waivers depend upon the type of visa as well as the type of violation. Certain types of waivers can be very difficult to obtain and, in all inadmissibility waivers, the government must be convinced that it is appropriate to favorably exercise the considerable discretion it has in these matters. Waivers are never routine, rubber-stamp matters. The fact that the government has stated that a waiver is required, therefore, neither indicates willingness on its part to grant such a waiver – nor even that one can meet the basic requirements for filing a waiver.
Lesson Four: Seek Qualified Advice
The decision as to how to address problems in immigration cases often requires careful analysis in light of the overall situation, and the availability of alternatives. If an appeal or a motion to reopen or reconsider is appropriate, there are tight timeframes involved. The course of action to overcome an unfavorable government decision is not always limited to what is indicated on the decision as a legal right of the petitioner or applicant. In fact, the options set forth by the government may not be viable, if the case was clearly deficient in some respect, and the government was correct in issuing a denial. Thus, it is always advisable when faced with a denial, to consult a knowledgeable and experienced attorney to establish the best possible courses of action as soon as the decision is issued. Attorneys at the Murthy Law Firm are available for consultation in such matters.
Originally posted 01.Jul.2011, this NewsBrief has been updated for MurthyDotCom readers.
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