If your petition for a new H1B visa (or transfer) has been denied there are specific steps that you can take to appeal. Basically, an appeal is a review of the original decision and supporting documentation, and you have the right to question the original decision. So many applications are received that if you think the denial was incorrect you should pursue an appeal at some level.
How the Appeal Process Works
The formal appeal of an H1B visa petition is made to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). Your denial notice will tell you where to file the appeal. You should file your appeal within 30 days of the original decision, so don’t wait too long to act. Similar time limits apply if you want to make a motion for reconsideration to the office that sent the denial.
Step One: Make a motion for reconsideration with the office that made the original decision. First, the officer that made the original denial will review your record. If your complaint seems valid, they will reopen your petition. If they do not reopen the petition, they will forward it to AAO or BIA.
Step Two: When you make the motion to the original office, you can also appeal directly to the AAO or BIA. This can take from 3 to 6 months, so if the denial was for an H1B transfer you should keep your original job until you know the outcome of your appeal. This is one good reason not to tell your current employer about plans to take a new job and transfer the H1B visa.
The AAO will either agree with your appeal and change the decision or disagree and affirm the denial. They may send it back to the original office for review as well.
What Do I Need to Include With My Motion or Appeal?
There is a fee to file an appeal, and your notice of denial will tell you the amount of the fee.
If you are disagreeing with the denial based on the visa rules, you should include an explanation of why you think the denial was in error. This can be submitted in the form of a brief. A motion for reconsideration should state some new facts or add documentation that supports the motion, otherwise there wont be any basis for reversing the decision.
An appeal to the AAO may be based solely on the original petition and documentation, showing that it was within the H1B visa guidelines and rules. If you have new facts or documents you can include them to support your arguments. Your appeal should address the exact issue and reason for denial, such as failing to show the new job as a ‘specialty occupation’. In that case, you can submit a job description or letter from the employer with more detail about your job duties.
Do I need an Attorney to File an Appeal?
Having an attorney is not required to file a motion or an appeal. Some applicants want to have an attorney prepare the brief and file the appeal, and if there is some complexity to your case that could be a good idea.
An attorney will charge you a fee for their services, but if you think the denial was in error then that may be worth the cost of professional assistance. If you want to appeal a H1B visa petition and have questions about the process, please contact us at any time.
- May 13th, 2016