Sometimes, a person’s case is denied, whether it is a hardship/fraud waiver, employment or family based petition, or other type of filing. In most denials, the person is given the right to appeal the denial, if he or she believes that the USCIS was wrong. However, the person should also carefully consider whether they should file an appeal or re-file their case.
At the outset, I want to make it clear that the decision on whether to appeal or re-file is complex and depends on a number of factors, rules, regulations, laws, policies, memos, case decisions, and the like. Therefore, before making such a decision, a person should seek the advice of a reputable attorney who can evaluate and guide you on the best course of action. Here are some factors to consider in deciding whether to appeal or re-file:
• Record on appeal. When a case is denied, and a person files an appeal, the process is usually limited to the record (or documents) that were provided to the original adjudicating officer. The person must argue that, based on the documentation already submitted, an error was made by the officer. However, sometimes the original submission or “record” was incomplete or lacking. For example, for a hardship waiver, a person is supposed to demonstrate “extreme hardship” to their qualifying relative (a spouse or parent who is a US citizen or green card holder). But what if they only submitted a single page letter from the qualifying relative, simply saying, “I will miss my wife”? That sparse letter clearly would not demonstrate “extreme hardship” and if the case was appealed, it is likely that the denial would be upheld based on the existing record.
• Changed circumstances or additional hardships. Many times after there has been a denial, there may have been changed circumstances or additional hardship factors. For example, maybe the qualifying relative came down with additional illnesses, or a previous mild illness or medical condition has gotten far worse, such that the current hardship is much more severe and different from the time when the case was originally filed. That may also affect the decision on whether to appeal or re-file.
• Processing time for appeal. If a person’s hardship waiver is denied, it can take over 17 months for an appeal to be processed. And the 17 months only begins when the file is finally transferred to the AAO. So, if it took USCIS six months to transfer the file, that 17 month clock would not even start running. Sometimes, it is faster to re-file than to wait for the outcome of an appeal, especially if the new filing is packaged and presented much better than the original submission.
• Status issues and 245(i). Sometimes, a person must to appeal a denial instead of re-filing. This happens when a person has to keep the original filing date, especially if the original filing was made while he or she was in status, and a new filing would be after he or she had gone out of status, (and there is no benefit of section 245(i), which enables somebody who is out of status to nevertheless adjust status). In such a case, if he or she made a new filing, but was out of status, he or she may not be able to adjust status in the US.
• No work authorization while on appeal. If a case is denied, and the person appeals, he or she ordinarily may not able to renew any work authorization. On the other hand, a new filing could possibly also include a new request for a new work authorization.
As you can see, if you have a denial, there are a number of factors and issues to consider in deciding whether to appeal or re-file. I have highlighted only a few of those items, and you should definitely not make a decision based solely on this article. (It would be like a person reading an article about surgery and then deciding to do an operation on their own, instead of first consulting a surgeon, or letting the surgeon do the surgery) Instead, I would strongly recommend that you seek the advice of a reputable attorney, who can evaluate your circumstances, explain your options, so that you can make the choice that is best for you and your situation.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar 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. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does 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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