The Administrative Appeals Process

Background

Should a petition or application be denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority. The USCIS's Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or Board of Immigration Appeals, or "BIA"), and provide you with the appropriate appeal form and time limit. There are strict deadlines that must be met to properly file an appeal. The appeal must be filed with the correct fee at the office that made the original decision. You may file a "brief" (a written explanation) in support of the appeal. After review, the appellate authority may 1) agree with you and change the original decision, 2) disagree with you and affirm the original decision, or 3) send the matter back to the original office for further action.

In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.

Who May Appeal?

Only the person that submitted the original application or petition may file the appeal. The petitioner alone has the legal right (or "standing") to appeal the denial of a visa petition. The beneficiary of a visa petition may not appeal the decision. For instance, if a United States employer petitioned for an immigrant visa for an employee living abroad, only the United States employer may appeal the denial. The employee living abroad may not appeal the denial.

The person appealing the decision may be represented by an attorney or representative. If the petitioner is represented, the appeal must be accompanied by a properly executed Form G-28 (Notice of Entry or Appearance as Attorney or Representative). The Form G-28 must be signed by both the attorney or representative and the person who filed the original petition or application.

How Do I Appeal?

You should review the Form I-292 or notice of denial that accompanied the adverse decision to determine whether you may appeal the denial of your petition or application. The decision will inform you of the proper appellate jurisdiction and provide you with the correct form.

If you desire to appeal the denial of a petition or application, the notice of appeal must be filed within 30 days of the date of the decision. If you receive the decision by mail, you must file the appeal within 33 days of the date of the decision. If you wish to appeal the revocation of an approved immigrant petition, you must file the appeal within 15 days of the date of the decision, or within 18 days of the date of the decision if the decision is received by mail.

If the Administrative Appeals Office has jurisdiction over the decision, the notice of appeal must be filed on Form I-290B (Notice of Appeal to the Administrative Appeal Office). The appeal must be filed with the office that made the original decision. A brief (explanation) may be filed in support of your appeal. The fee must be included, but you may request a fee waiver from the USCIS.

Source: U.S. Citizenship and Immigration Services

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Applying for a Nonimmigrant (Temporary) Visa

Where and how to get the right to spend a limited amount of time in the United States.

Most visitors to the U.S. are required to apply for visas from their home countries, before arriving in the United States. If you haven't yet identified the type of visa you might qualify for, see Who Qualifies for a Nonimmigrant (Temporary) Visa.
Where to Apply

You will have to locate the consulate nearest you that is authorized to issue the type of visa you want. The U.S. Department of State's website (www.state.gov) can help you find a consulate near you and provides other helpful immigration information. Also check your local consulate's own website. You'll find helpful information about hours and application procedures. For example, some consulates require certain applications to be submitted only by mail, not in person.

You must usually do all or part of the visa application process in the country where you live. U.S. embassies and consulates outside your home country will normally refuse to accept your application -- unless you can show a compelling reason why you are unable to apply at home. If, for example, the U.S. has no diplomatic relationship with the government of your homeland, another country's U.S. consulate may take your application. Check with the embassy or consulate where you want to apply.
How to Apply

For some types of visas, such as visitor visas, applying involves simply filling out a few application forms and attending an interview at the embassy or consulate (though the final decision may be delayed while security checks on you are completed).

For student visas, applying is a two-step process. First, you must find a school to admit you and send you a special form. Then you take that form and your own application to the U.S. consulate. This process is covered in Student and Tourist Visas: How to Come to the U.S., by Ilona Bray (Nolo).

For most work visas, applying is a three- or four-step process. First you must find a U.S. employer willing to sponsor you. Then, your employer must file paperwork with the U.S. Department of Labor (for H-1B and H-2B visas) and an office of U.S. Citizenship and Immigration Services (USCIS), requesting permission for you to apply for a visa. After your employer gets USCIS approval, the third step is for you to file an application for a visa at the U.S. embassy or consulate in your home country.
Personal Interviews Are Likely
Even if you submit your application by mail, you will later probably have to go to the embassy or consulate for a personal interview. (For security reasons, the U.S. government is requiring more personal interviews than ever before.) Contact the U.S. embassy or consulate in your country to learn its requirements.
How Long You'll Wait

Nothing happens as fast as it should in the world of visa applications. For example, while you used to be able to get tourist and student visas in as little as a day, this is rarely true anymore. Many embassies and consulates have switched to requirements that you mail in your application and then come in for a personal interview later. Also, you will not be approved until your name has been checked against various criminal and security-related databases -- which, if you have a common name, has been known to add weeks or months to the process.

For more help on applying for a visa, consult one of the following Nolo books:

* U.S. Immigration Made Easy, by Ilona Bray
* Student and Tourist Visas: How to Come to the U.S., by Ilona Bray.

Copyright 2008 Nolo

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Obtaining a U.S. Visa

For years the United States of America has required that many people wishing to travel to the U.S. to study, visit or conduct business first obtain a visa. Recently, the U.S., like many other countries, has updated visa policies to increase security for citizens and visitors. Yet, much remains unchanged. Today, as in the past, most travelers to the U.S. must obtain a visa. The process still includes application forms and interviews as well as the collection and cross-checking of names in a highly sophisticated inter-agency database. Because of this process, many visas take at least several weeks, but some can take longer. While individual experience may differ, here are the basic steps you should follow and what you can expect throughout the process.

1. Make an appointment to visit the U.S. Embassy or Consulate.
Visa application procedures vary somewhat among Embassies and Consulates, depending on local needs. In most countries, you will need to make an appointment. This can be done by telephone, mail, over the Internet, or in person, depending on circumstances in your country. Wait times for appointments may be longer than in the past. Schedule your appointment as soon as you know you need to travel to the U.S.

2. Be sure to ask what fees are required and how they can be paid.
Application fees are non-refundable and must be paid before your appointment.

3. Get all your documentation ready. You will need:

• A valid passport
• Appropriate applications.
• Documents to support the application detailing employment, reason for travel and financial status
• Proof of payment of fees

Remember, as in the past, the consular officer may require additional information or application forms.

4. Submit your application, passport, and supporting documents to the U.S. Embassy or Consulate.
Your application will then be reviewed by the consular officer and, in many cases, by officials in Washington, D.C. For most applicants, the visa is issued within a few weeks. There is no guarantee of obtaining a visa.

5. In some cases, additional reviews will be required.
Your information is submitted and checked in the world's foremost security database, which includes comprehensive information drawn from both U.S. and foreign law enforcement agencies worldwide. If your name or a close variation indicates security concerns, the process will be delayed. Additional steps will vary from requests for additional interviews and information to official registration and fingerprinting. This may add at least 4 to 6 weeks to the processing time. Registration upon arrival in the United States is mandatory in many cases but registration can be required in any case regardless of country of origin.

6. A visa allows you to travel from your country to a port of entry in the U.S.
In many cases, that port of entry will be the airport where you land. On the airplane you will be asked to complete a short arrival/departure form. When you deplane, follow directions for non-citizen entry. At the airport, a U.S. official will interview you and verify all of your paperwork. Once admitted ,you will receive an immigration stamp and proceed to baggage claim and U.S. Customs.

You may be informed by the consular office before leaving your country if you will be subject to special clearance procedures. Some travelers may be directed to private workstations in the arrivals hall, where special registration, photos and electronic (ink-less) fingerprints will be taken. Additional interviews and verification processes will also be conducted.

From the U.S. Department of State

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Classes of Aliens Ineligible to Receive Visas

Under the Immigration and Nationality Act, certain classes of foreign citizens (or "aliens") are ineligible for visas, or for admission to the United States. These ineligible classes are discussed below. Typically, the determination whether an individual belongs to an ineligible class is made by a U.S. Consulate officer overseas, or by a U.S. Citizenship and Immigration Services official at a point of entry to the U.S. Keep in mind that this list of ineligible classes is not exhaustive, and there are certain complex exceptions for persons in many of the classes discussed below.

Aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

Health-Related Grounds

(a) Any alien who is determined to have a communicable disease of public health significance, including infection with acquired immune deficiency syndrome (AIDS),

(b) Any alien who seeks admission as an immigrant (or who seeks adjustment of status to that of lawful permanent resident) and who has failed to present documentation of having received vaccination against certain preventable diseases, including: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B. An exception to ineligibility under this class exists for certain adopted children 10 years of age or younger.

(c) Any alien who is determined to have a physical or mental disorder (and associated behavior) that may pose, or has posed, a threat to the property, safety, or welfare of him/herself or others, or is likely to recur or to lead to other harmful behavior

(d) Any alien who is determined to be a drug abuser or addict, is inadmissible.

Criminal and Related Grounds

(a) Any alien convicted of, or who admits having committed, almost any type of crime (other than a purely political offense), EXCEPT if the crime was committed when the alien was under 18, AND was committed (and the alien released from incarceration) more than 5 years before the date of application for visa or admission to the U.S., AND the maximum penalty possible for the crime did not exceed imprisonment for one year, AND if convicted the alien was not sentenced to a term of imprisonment in excess of 6 months.

(b) Any alien who has committed a violation of (or a conspiracy or attempt to violate) any state, federal, or foreign country's law relating to certain controlled substances.

(c) Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single incident, for which the sentence to confinement was 5 years or more.

(d) Any alien who is known to be, or suspected of being, an illicit trafficker in any controlled substance (and certain spouses and children of these individuals, when the family member received financial benefit)

(e) Any alien who is engaged in prostitution, or has been engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.

(f) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.

(g) Significant traffickers in persons, or beneficiaries of trafficking.

(h) Aliens engaged in money laundering.

Security and Related Grounds

(a) Any alien believed to be seeking to enter the United States to engage in activity relating to the overthrow of the government, espionage, sabotage, or to violate laws prohibiting the export of certain goods, technology, or sensitive information.

(b) Any alien who has engaged in a terrorist activity, is a representative of a foreign terrorist organization, or other similar group.

(c) An alien whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States.

(d) Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party.

(e) Any alien who participants in nazi persecutions or genocide during the period beginning on March 23, 1933, and ending on May 8, 1945.

Likely to Become "Public Charge"

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General, is likely at any time to become a public charge is inadmissible, considering factors including the applicant's age, health, family status, assets, financial status, education, and skills.

Labor Certification and Qualifications for Certain Immigrants

Any alien who seeks to enter the U.S. to perform skilled or unskilled labor is inadmissible, unless the Secretary of Labor makes certain determinations regarding the impact on U.S. workers and the economy. This ineligibility class is subject to a number of exceptions.

Aliens Previously Removed, and Individuals in Violation of Immigration Laws

Certain aliens who were previously removed from the U.S., certain aliens who are unlawfully present in the U.S., and certain individuals who are in violation of U.S. immigration laws, including documentation requirements.

Waiver of Ineligibility

Aliens who are ineligible for a visa under one of the classes enumerated above may be eligible for a waiver of ineligibility under certain provisions of the Immigration and Nationality Act.

Source: U.S. Department of State

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Immigrant and Non-Immigrant Visa Types

Foreign nationals seeking to enter the U.S. must typically obtain a visa. Visas may be divided into two general categories: immigrant and nonimmigrant. Immigrant visas are issued to aliens seeking permanent residence in the U.S., while nonimmigrant visas authorize a stay for a limited period of time with a specific purpose. Following is a discussion of immigration and nonimmigrant visa categories and requirements
IMMIGRANT VISAS

Aliens seeking admission to the U.S. as immigrants follow one of two paths depending on their residence at the time of application.

Aliens living abroad apply for an immigrant visa at a consular office of the Department of State. Once issued a visa, they may enter the U.S. and become legal immigrants when they pass through the port of entry.

Aliens already living in the U.S., including certain undocumented immigrants, temporary workers, foreign students, and refugees, file an application for adjustment of status (to legal permanent residence) with the Bureau of U.S. Citizenship and Immigration Services (USCIS). At the time they apply for adjustment of status, applicants may also apply for work permits. New legal immigrants are automatically authorized to work and should receive alien registration cards ("green cards") after becoming legal permanent residents.

Immigrant Visa Categories

Immigrant visas may be divided into two categories: visas subject to numerical limitations and those that are not.

Visas not subject to numerical limitations are granted to immediate relatives (children, parents and spouses) of U.S. citizens, resident aliens returning from temporary visits abroad, and former U.S. citizens. To qualify as a "child" of a U.S. citizen the person must be unmarried, under 21 years old, and either a legitimate child, stepchild, illegitimate child, adopted child, an orphan adopted abroad, or an orphan coming to the U.S. to be adopted. A parent with any of the relationships described under the definition of child qualifies as a "parent." In order to receive a visa as the spouse of a U.S. citizen the alien must have a "valid and subsisting marriage" with that citizen.

Visas subject to numerical limitations are granted to persons qualifying for family sponsored, employment related, or diversity immigrant visas. There are four categories of family sponsored visa preferences: unmarried sons and daughters of U.S. citizens and their children; spouses, children, and unmarried sons and daughters of legal permanent residents; married sons and daughters of U.S. citizens and their spouses and children; and brothers and sisters, including spouses and children, of U.S. citizens ages 21 and over. There are five categories of employment-sponsored preferences: priority workers; professionals with advanced degrees or aliens of exceptional ability; skilled workers, professionals (without advanced degrees), and needed unskilled workers; special immigrants (e.g. ministers, religious workers, and employees of the U.S. government abroad); and employment creation immigrants or "investors."

Family and Employment-Sponsored Applications

Applying for family-sponsored immigrant status is a multi-step process involving numerous submissions. First, the USCIS must approve an immigrant visa petition filed by a relative and accompanied by proof of relationship to the requesting relative. Second, the Department of State must determine if an immigrant visa number is immediately available to the alien, even if he or she is already in the U.S. Third, if the alien is already in the U.S., he or she must apply to change his or her status to that of a lawful permanent resident after a visa number becomes available. If the alien is outside the U.S. when an immigrant visa number becomes available, he or she must then go to the U.S. consulate to complete processing. Applying for employment-sponsored immigrant status requires a similar multi-step process, with the added requirement that the employer must file a labor certification request with the U.S. Department of Labor.

Family and Employment-Sponsored Visa Numerical Caps

Family sponsored and employment related immigrant visas are subject to a complicated system of per-country numerical caps. The U.S. Department of State, Bureau of Consular Affairs, publishes a monthly Visa Bulletin that summarizes the availability of visas subject to numerical limitations, and lists the countries that have filled their allotments.

Diversity Lottery

"The diversity immigration program" provides another, but more limited, method of gaining permanent residence. Under this program, approximately 55,000 immigrant visas are available annually to aliens who are natives of countries determined by the I.N.S. to be "low admission" countries, that is, countries that are proportionately under-represented in the U.S. immigrant population. To receive a diversity visa, an individual must have at least a high school education or its equivalent, or, within the preceding five years, two years of work experience in an occupation requiring at least two years training or experience

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Visas Overview

Foreign individuals (sometimes called "nationals") often require visas to move between countries or to engage in certain activities abroad. Visas are official government endorsements, usually stamped in the recipient's passport, permitting a foreign national to proceed with his or her plans in the non-native country. In the United States, foreign nationals may receive either an immigrant or a nonimmigrant visa for entry. The specific visa desired depends on the individual's needs and goals, as well as his or her status with regard to immigration rules.

Immigrant Visas

The Bureau of U.S. Citizenship and Immigration Services (USCIS) issues immigrant visas to qualified applicants who wish to enter the U.S. to stay permanently. The specific type of immigrant visa granted varies based on the individual's status -- such as a family member of a citizen or permanent resident, potential employee of a U.S. company, or foreign national with business or investment interests in the U.S.

Numerical Limitations on Immigrant Visas

Some immigrant visas are subject to annual numerical limitations. The USCIS divides family-sponsored and employment-related visas into limited categories, and grants visas based on a pre-determined allocation among those classifications.

Example: For family-based immigration, spouses and children of lawful permanent residents receive a larger percentage of the visas available for family-sponsored immigration than married children of U.S. citizens. In employment, priority workers including outstanding professors and persons of extraordinary ability in various fields receive a larger proportion of the available employment visas than religious workers.

The Diversity Visa Lottery

In addition to family-based and employment-related visas, the INS grants diversity visas to immigrants from countries that historically send few immigrants to the United States. The system involves a visa lottery, and is therefore a very uncertain method of securing legal entrance to the U.S.

Immigrant Visas without Numerical Limits

Immigrant visas not subject to numerical limitation are available to:

• Immediate relatives of citizens,
• Permanent residents returning to the United States, and
• Former American citizens.

The immediate-relative category is the most common of these visa categories even though it covers only spouses and children. The USCIS will not grant visas for fraudulent marriages entered into in order to receive immigration benefits, and the bureau penalizes sham marriages through deportation, criminal imprisonment and fines, and permanent bars to permanent residence.

Nonimmigrant Visas

Nonimmigrant visas apply to temporary visitors who intend to return to their home countries. Nonimmigrant admissions far outweigh the number of immigrant visas issued each year. The USCIS establishes a wide range of categories for nonimmigrant visas, and each category brings distinct rights and responsibilities for the holder. Some examples of nonimmigrant visa categories include:

• A-1 visas for diplomatic personnel,
• B-1 visas for business,
• B-2 visas for tourism,
• F-1 visas for students, and
• H visas for temporary workers.

Some nonimmigrant visas allow the holder to work during his or her stay in the United States. Others allow the visitor to bring family members or to enter the country to join family members.

Getting Legal Help with the Visa Process

The application procedure for both immigrant and nonimmigrant visas can be complicated, involving a large number of forms and necessary documentation. In order to ensure that the application process goes smoothly and has the best chance for a favorable outcome, prospective visa applicants should contact an experienced immigration attorney for key advice and proper guidance.

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Visa Basics

Visas are official government endorsements permitting a foreign national to remain in a non-native country. In the U.S., foreign nationals may receive either an immigrant or non-immigrant visa for entry, depending on their goals and their status with regard to U.S. immigration rules. Choose a link from the list below for introductory information about visas and immigration law.

Visa Basics:

* Visas: An Overview
* Glossary of Visa Terms
* Immigrant and Non-Immigrant Visa Types
* Visa FAQs
* Classes of Aliens Ineligible to Receive Visas

Getting a Visa:

* Obtaining a U.S. Visa
* Applying for a Visa Abroad: U.S. Embassies and Consulates
* U.S. Embassy and Consulate Links
* Appealing a Visa Denial

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