Should I appeal or refile?

DEAR Attorney Gurfinkel:

I just received a denial from USCIS, giving me 33 days to file an appeal. I truly think I was eligible, but am so heartbroken. Would you advise I file an appeal?
Very truly yours,
RD

Dear RD:
The decision on whether to appeal a denial is not always simple and straightforward. There are many facts and factors to consider, such that I would advise people to immediately consult with an attorney on the decision, rather than trying to do it on their own. Among the factors to consider are:

WHY was the case denied? The Decision/Denial typically spells out or explains the reasons for the denial. But in some cases, the reason is erroneous, either because the officer misapplied the law or the facts.

Was the person eligible or entitled to the benefits sought? If they are not, it would be a waste of time to appeal.

Did the person submit proper evidence, showing their eligibility for the immigration benefits sought? Typically, when a person appeals, they are limited to the “record on appeal,” which is the presentation they made to the officer. A person is not typically entitled to submit additional documents or evidence on appeal. But if a person did not make a full or proper evidentiary showing to the officer, then the record on appeal would support the denial. For example, in connection with a fraud waiver, if a person submitted a bare-bone declaration and evidence, which failed to show extreme hardship to a qualifying relative, appealing the denial may not help because the record shows they did not meet their burden of proof to the officer.

Would it be faster to file a new petition or application than it would to appeal?Sometimes it could take years before an appeal is finally heard. In addition, based on the “record on appeal,” the appeal could be dismissed or denied. As a result, years were wasted. Had the person filed a new petition, application, etc., it might’ve been faster, and they could’ve had better chances of success, especially if they properly packaged the new application, rather than appealing with the existing record. Of course, there are many factors to consider before deciding to submit a new application rather than filing an appeal, such as whether it would affect a person’s immigration status, or push a person’s priority date far off into the future.

These are only a few of the factors a person would need to consider in connection with the decision on whether to appeal. Of course, the best course of action is to properly package and present your case at the outset to avoid the denial. That’s where having an attorney could greatly increase the chances for approval. If you get a denial, the decision on whether to appeal is complex and you should consult with an attorney on the best course of action.

* * *
Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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