A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, September 11, 2015

To Appeal or Not Appeal: That's the Question

When faced with an unfavorable decision on their immigration petitions, many applicants ask the same question - Should I appeal or not? 

This is a complex question that must be analyzed based on many factors including the type of application, the applicant's personal situation (e.g., immigration status, finances), the reasons for the denial, availability of alternative solutions, etc.  

The primary concern of most clients is the chance of success.  It is a fair question.  After all, what is the point of appealing if it does not change the outcome of the case. The table below (courtesy of AAO and AILA) provides some insights to the "chance" question.  For example, take H-1B (I-129) petitions as an example, for the past four years, the dismissal rate has been 94% or above.  The best year was FY14, in which 509 cases were dismissed and 28 cases (or about 5%) were either sustained or remanded (both are positive results).   So if one only considers the mathematical probability of success, it does not make sense to appeal an H-1B denial.  

However, what clients do not understand is that even if 90% of the appeals are sustained, it wouldn't help their cases if they belong to the other 10%, and visa versa.  Each case is indeed different.  The most important factor in deciding whether to appeal or not is the merits of the case.  Generally speaking, legal issues are better candidates for appeal than factual issues.  For example, if the denial is based on a finding that separate LCAs are required for each client location of a traveling engineering, this presents a legal issue involving an interpretation of the regulation.   Filing an appeal may make sense if you are certain you are correct on the law.  On the other hand, if the denial is premised on a lack of proof of a valid employer-employee relationship based on the documents submitted, the dispute is factual in nature and it would be difficult to win on appeal.

As mentioned above, there are other considerations too when deciding whether or not to file an appeal.  For instance, if the applicant needs a decision as soon as possible because her current immigration status is expiring soon, filing a new petition using premium processing would be a better option than an appeal. Although the AAO's processing time has improved tremendously over the years, it is still taking about six months to process an appeal.  On the other hand, if the denied H-1B petition is a CAP case, filing a motion or an appeal will be the only option to save the visa number.  

Conclusion:  In the face of an adverse decision, deciding whether or not to file an appeal can be a complex decision depending on many factors.   Such a decision should be carefully made with the assistance of an experienced immigration lawyer.  

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