Questions and Answers: Appeals and Motions | USCIS
FREQUENTLY ASKED KNOWLEDGE BASED QUESTIONS
The U.S is an open society. Unlike many other countries, the U.S does not impose internal controls on most visitors, such as registration with local authorities. The U.S Immigration law requires consulate officers to treat each visa applicant as an intended immigrant until further notice. In order to enjoy the privilege of unrestricted travel in the United States, you have a responsibility to prove that you will return abroad before issuing a visitor or student visa.
Can I file an appeal if I get the I-485 decision as denied?
If your I-485 application to adjust status is denied, you will receive a letter that shows why the application was denied. An applicant cannot file an appeal to the USCIS decision of employment-based application. The only applications for permanent residency of Form I-485 which can be appealed to USCIS are those based on marriage.
What is Section 214 (b)?
Section 214 (b) is part of the Immigration and Nationality Act (INA). It says:
Every foreigner will be considered an immigrant unless, at the time of applying for admission, the consulate officer is satisfied that he or she is entitled to non-immigrant status.
Our consular officers have a difficult task. They must decide in a very short time whether they are eligible for a temporary visa. In most cases, the decision is made after a brief interview and a review of the evidence of the relationship presented by an applicant. To qualify for a visitor or student visa, the applicant must meet the requirements of Section 101 (a) (15) (b) or (f) of the INA. Failure to do so will result in no-issuance of visa under 214 (b). The biggest reason for such a refusal is related to the need that the prospective visitor or student has no intention of staying abroad. Applicants prove the existence of such accommodation by showing that they have ties abroad which will force them to leave the U.S at the end of the temporary stay. The law places this burden of proof on the applicant.
How can the applicant prove a "strong relationship"?
Strong relationships vary from country to country, from city to city, and from individual to individual. Some examples of relationships can be a job, home, family, bank account. Relationships are different aspects of your life that connect you to your country of residence: your property, employment, social, and family relationships.
Imagine your relationship in the country where you live. Will the consular office of another country consider that you have a residence there that you do not intend to leave? It is likely that if you have a job, a family, if you have a house or an apartment, or if you have other commitments, the answer will be "yes" to return to your country at the end of your trip abroad. It will be required. Everyone's situation is different.
The United States consular officials are aware of this diversity. During the visa interview, they look at each application individually and consider professional, social, cultural, and other factors. In the case of younger applicants who may not have had the opportunity to make many connections, Counselor Officers may look into applicants' specific intentions, family circumstances, and long-distance plans and prospects within their country of residence. Each case is investigated individually and is under consideration under the law.
Is denial permanent under section 214 (b)?
No. If an applicant can show more conclusive evidence of a relationship outside the United States, the Consulate Officer will reconsider a case. Unfortunately, some applicants will not qualify for a nonimmigrant visa, no matter how many times they reapply, unless their personal, professional, and financial circumstances change significantly.
Under Section 214 (b), the denying applicant should carefully review their situation and make a factual assessment of their relationship. They can write on paper what qualifications they have in a relationship that may not have been assessed during their interview with the consular officer. Also, if they have been denied, they should review what documents were submitted to the Consulate for consideration.
Applicants who are denied a visa under section 214 (b) may re-apply for a visa. When they do, they will need to show more evidence of their relationship or their circumstances from the time of the actual application. It may be helpful to answer the following questions before reapplying:
Applicants should also keep in mind that whether the visa is issued or not, they will be charged a non-refundable application fee each time the visa is issued and re-applied.
Who can influence a consular officer to reverse a decision?
The U.S.Immigration law delegates the responsibility to issue or deny visas to embassy officials abroad. They have the final say on all visa matters. According to the ordinance, United States. The Department of State has the power to review embassy decisions, but the authority is limited to interpreting the law, contrary to factual judgments. The question in such denials is whether the applicant has the required residency abroad, a question of facts. Therefore, it only falls under the jurisdiction of the Consulate Officers at our Foreign Service embassies/consulates to be resolved. An applicant can influence the embassy/consulate to change the visa denial only by presenting new concrete evidence of strong ties.
For information on visa disqualification other than 214 (b), please visit the department's Consulate Affairs website.
What is a motion to reopen?
If you strongly believe that the decision which US immigration department took in your case is unfavourable and you want the authority to review their decision by providing some new facts, then a motion to reopen is filed. But it is important that you must state new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying application or petition. Also, the new facts must be relevant to the issues raised on motion.
Can I request for a fee waiver for my appeal?
Yes. In some cases, USCIS can waive a filing fee based on inability to pay. If USCIS have waived the filing fee for the underlying petition or application. then there are possibilities that USCIS waive the filing fee for the motion as well.