To Appeal or Not to Appeal: That is the Question

In September of 2015 I wrote a post about appealing self-sponsored and EB-1B cases and the statistics of those type of appeals.  As I reported then, the chances of winning on appeal are extremely small – less than 6% in most cases.  So, in general, for the majority of case  you are much better off just trying to refile as opposed to appealing a denial.  The one question we did not answer at that time was:  when should you appeal?  I will try to answer that now, however please keep in mind that this is not an easy question to answer, and, as each case is different, it is a decision that needs to be made on a case by case basis in consultation with an experienced attorney.  However I can state some general guideline that we generally follow in our practice.  Generally there are three times an appeal may make sense:

1.  If you need to supplement the record before going to Court:  When you are fairly certain that you are going to have to go to court, but the record on file with USCIS is missing certain documents, appealing makes sense.  In this way you can supplement the record with the new documents so that the Court, which will only rule based upon the record, has those documents in front of them.

2.  Maintenance of Status: A second scenario where appealing can make sense is where you need to maintain the I-140 in pending status so that you can extend your H-1B past the 6 year maximum.  By appealing, the I-140 is still pending and you can then renew the H-1B.  It is important to understand, however, that USCIS position is that if the I-140 appeal is dismissed, then the H-1B extension is over.

3.  USCIS Error: Lastly, it can make sense if the case is a strong case and the decision is flawed in some manner.  Sometimes the officer who writes the decision misquotes the law, or ignores crucial facts or evidence in the case.  When this happens, an appeal has more opportunity to be successful.  While technically the AAO reviews cases de novo (i.e. They review the cases anew), in practice the AAO is more inclined to uphold a USICS decision then they are to overturn a decision.  If the case is one that is extremely strong or it is a good case in which the USCIS office misstates or misapplies the law, or dismisses strong evidence without explanation then there is more chance that the AAO will overturn the decision.  If you have a good case, but the officers reasoning in denying was sound, but you just feel the evidence was strong enough, it would be hard to convince the AAO to overturn such a decision.

One last point to keep in mind is that, while you may be able to convince the AAO that the decision was wrong, it is also possible that the AAO, while agreeing with your issue can end up upholding the decision on another ground.  And it is possible that this new ground of denial impacts your ability to refile in a timely manner.  For example, if an Extraordinary Ability case is denied and you feel the officer failed to review all the evidence (lets say the officer gave you two categories – publications and awards, but not original contributions), you may think you have a good appeal.  But the AAO very well could agree with you, but then go on to say that, for example, the strong evidence you provided on your awards was insufficient to show that you meet that category and uphold the denial.  Now you are left with an appellate decision that definitely says your evidence in one category was insufficient and you do not qualify whereas the initial decision, while it stated you did not qualify, was easier to respond to in a refiling.

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