Appeals

There are several agencies for administrative appeals of immigration matters.  These include the Administrative Appeals Office (AAO), the Board of Alien Labor Certification Appeals (BALCA), the Board of Immigration Appeals (BIA) and the Office of Chief Administrative Hearing Officer (OCAHO).  Which one to appeal to depends on the immigration matter that is being appealed.

The time to appeal is normally limited, so it is important to file the appeal at the correct location within the time allotted.

The Administrative Appeals Office (AAO)

The AAO is within of the Department of Homeland Security (DHS) and specifically within the United States Citizens and Immigration Services (USCIS).  Virtually all applications and petitions filed with USCIS for an immigration benefit, if an appeal is allowed, are appealed to the AAO.  This includes I-485 Adjustment of Status, I-140 Immigrant Petition, I-129 Petition for Nonimmigrant Temporary Workers (including H-1B and L-1), I-360 Petition for Spouse or Child under VAWA, and I-601 Waiver of Inadmissibility, among others.  A significant exception is the I-130 Petition for Alien Relative, which is appealed through the USCIS office with administrative control over the file to the BIA.

If your petition or application is denied by USCIS, you will receive a letter from them explaining the reasons for the denial and whether you may file a motion or an appeal.

There are two types of motions: motion to reconsider and motion to reopen.  A motion to reconsider is filed where it is believed that USCIS incorrectly applied immigration law in your case.  A motion to reopen is filed where it is believed that pertinent facts were not considered or misinterpreted by USCIS.  These motions are reviewed and decided by the office which made the original decision.

An appeal is a request for the AAO to review a denial decision due to incorrectly applied immigration law or a missed or misinterpreted pertinent fact(s) of the case.  Additional evidence can normally be provided.  The appeal is not filed directly with the AAO.  The appeal will usually first be reviewed by the office which made the original decision.  That office may treat the appeal as a motion and reverse its previous decision and approve the petition or application.  If that office does not reverse its decision, it will transfer the appeal to the AAO for a decision.

The motions and/or appeal are filed with the Form I-290B and the appropriate fee.  The USCIS.gov website will give the address for where the I-290B must be sent.  The I-290B must be filed within the time indicated on the notice of the denial.  A brief should also be filed with the I-290B, but can also be filed later.  The brief is essential to provide a sufficient explanation as to why the earlier decision was in error.  It is important to specifically point out the error of law or fact that was made, and include additional evidence if applicable.

For a petition, only the petitioner or the petitioner’s representative can file the appeal.  The beneficiary is not allowed to file the appeal.

Board of Alien Labor Certification Appeals (BALCA)

BALCA, which is part of the US Department of Labor, reviews denials by the Certifying Officer (CO) of PERM labor certification applications and prevailing wage determinations (PWD) by the National Prevailing Wage Center (NPWC) and the CO.

For PERM denials, the employer or its representative may send a motion to reconsider to the CO if the employer does not want to appeal to BALCA.  If an appeal to BALCA is desired, the employer or its representative first send the appeal to the CO.  The CO may treat the filing as a motion to reconsider and approve the certification.  Otherwise, if the CO still denies certification, the CO forwards the appeal along with the record to BALCA.

While a request for BALCA review is pending, a new PERM labor certification application for the same occupation and the same foreign worker cannot be filed.  Thus, the employer must decide between waiting for the appeal process or filing a new PERM labor certification application for the employee.  There are several consideration for which option is best depending on the specific circumstances.

For PWDs, the employer or its representative may request a redetermination.  A redetermination is requested by filing supplemental information with the NPWC (or CO).  If the employer submitted the original prevailing wage request via iCERT, the employer should use the redetermination request option in iCERT to submit the redetermination request within 30 days from the date of the prevailing wage determination and provide any supplemental information via email to FLC.PWD@dol.gov.  If the employer disagrees with the redetermination, then it can request review by the Center Director.  If the employer disagrees with the Center Director’s determination, the employer can appeal by sending a request for review to BALCA.

Board of Immigration Appeals (BIA)

The BIA is part of the Executive Office for Immigration Review (EOIR) which is within the U.S. Department of Justice.  The BIA is the appellate court for decisions of the Immigration Courts.  It also reviews some decisions of the Department of Homeland Security, such as I-130 Petition for Alien Relatives.  There is normally a 30 day time limit from the date of the decision to file an appeal.  The appeal must be received by the BIA within the time limit (i.e., mailing prior to the time limit is not sufficient).

If allowed, appeals of BIA decisions are to the appropriate federal circuit court of appeals.  This must normally be done within 30 days of the BIA decision.

Office of Chief Administrative Hearing Officer (OCAHO)

The OCAHO is also part of the EOIR within the U.S. Department of Justice.  It oversees Administrative Law Judges (ALJ’s) in unfair immigration related employment practices, employer sanctions, and document fraud.  Employer sanctions and document fraud cases are subject to administrative review by the Chief Administrative Hearing Officer (CAHO) and/or the Attorney General.

The CAHO or the Attorney General may modify the ALJ’s decision and issue a revised decision; set aside the ALJ’s decision and issue a new decision; or send the case back to the ALJ for further proceedings.  A party has 45 days to file an appeal of the decision with the appropriate federal circuit court of appeals.

Regarding immigration-related employment discrimination cases, once the ALJ has decided the case, a party (the employer, the OSC, or the job applicant or employee) has 60 days to file an appeal of that decision with the appropriate federal circuit court of appeals.