Administrative Appeals Office
The Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Service (USCIS) is divided into 9 branches.
Prior to the creation of the AAO, denied petitions and applications were appealed to the Immigration and Naturalization Service (INS) commissioner. In 1983, the INS established the Administrative Appeals Unit (AAU), in order to centralize the review of administrative appeals. In 1986, the INS created the Legalization Appeals Unit to adjudicate appeals of denied Legalization and Special Agricultural Worker applications, under the Immigration Reform and Control Act. In 1994, INS integrated the two units and created the AAO.
In 2002 was enacted the Homeland Security Act (HSA). The HSA separated the INS into three components within the new DHS, and on March 1, 2003, the AAO became a part of USCIS. The HSA created also the U.S. Department of Homeland Security (DHS) and the new cabinet-level position of Secretary of Homeland Security.
Petitioners and applicants for certain categories of immigration benefits may appeal negative decisions. The AAO adjudicates appeals under authority delegated to the USCIS by the Secretary of the DHS. It exercises appellate jurisdiction over approximately 50 different immigration case types, handing on administrative review in order to ensure solidness and preciseness in the interpretation of immigration law and policy. It provides an accurate resolution of appeals through written fair and impartial decisions.
The office issues two types of decisions:
- Precedent decisions, as guidance to the USCIS adjudicators, on the interpretation of immigration law and policy;
- Non-precedent decisions apply existing law and policy, binding upon the parties, and do not create or modify agency guidance or practice.
The AAO hears cases including employment-based immigrant petitions under § 204 (b) of the Immigration and Nationality Act (INA), non-immigrant worker petitions under INA § 214, denials of re-entry permit applications, revocation of approvals of immigrant visa petitions, denials of re-entry permit applications, or denials of certificates of citizenship. In EB-5 Visa petitions, the AAO has jurisdiction to review the Service Center/Immigrant Investor Program Office's denials of Form I-526 (Immigrant Petition by Alien Entrepreneur).
When a case is denied, the USCIS Service Center sends a letter to the petitioner that explains the reason for the denial. The denial notice provides information about whether the decision may be appealed, and where to file an appeal. With certain exceptions, it is also possible to file a motion to reopen or a motion to reconsider.
You may file a motion with USCIS even if you do not have any appeal rights. Moreover, it is also possible to file a motion to reconsider on an appellate decision.
The applicant has to appeal the denial within 30 days, by filing the Form I-290B, with a legal brief and any supporting papers. USCIS will review the appeal within 45 days and determine whether to take favorable action or forward the appeal to the AAO. The AAO will take the appropriate decision within six months of the date of filing. If necessary, the AAO recommends the publication of precedent decisions to clarify issues in the adjudication program.
The decisions are first forwarded to the USCIS Freedom of Information Act office and are later posted online. If the AAO affirms the lower decision, you can still appeal in the local District Courts. Under the doctrine of "exhaustion of administrative remedies", administrative decisions must be appealed through any administrative appeals process, before they can go to Federal Court, although some exceptions apply.
For instance, when the Federal Court appeals alleges an independent cause of action, such as violation of the Administrative Procedure Act, a lawsuit can be filed against USCIS even without filing an appeal with the AAO. Federal Courts have jurisdiction when appeals are not mandatory. This was the ruling on Darby v. Cisneros, 509 U.S. 137 (1993).
Contact a New York Immigration Attorney if your case was denied and you want to file an administrative or Federal appeal.