9.3 - Visa Petition Denials

(a) Jurisdiction — The Board has appellate jurisdiction over family-based immigrant petitions filed in accordance with section 204 of the Immigration and Nationality Act, with the exception of petitions on behalf of certain orphans.  See 8 C.F.R. § 1003.1(b)(5).  See generally Chapter 1.4 (Jurisdiction and Authority).  The Board does not have jurisdiction over employment-based visa petitions.  See 8 C.F.R. § 103.2, 103.3, 1205.2(d).  See also Chapters 1.2(g) (Relationship to the Administrative Appeals Office (AAO)), 1.4 (Jurisdiction and Authority).

(b) Standing — Only the petitioner, not the beneficiary or a third party, may appeal the denial of a visa petition.  Matter of Sano, 19 I&N Dec. 299 (BIA 1985).  Self-petitioners – including battered spouses, battered children, and certain relatives of deceased citizens – also have standing to appeal.  See Immigration and Nationality Act §§ 204(a)(1)(A)(ii), (iii), (iv); 204(a)(1)(B)(ii), (iii); and 204(l); 8 C.F.R. § 204.2.

(c) Filing the Appeal — 

          (1) How to file — Appeals of all visa petition decisions are made on the Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR-29).  8 C.F.R. § 1003.3(a)(2). (This form is different from the Form EOIR‑26 used in immigration court proceedings.)  This form is also used for petition-based appeals from the decisions of Service Center Directors.  The appeal form must be signed by the petitioner, not the beneficiary.  The rare exceptions to that rule are those cases in which the individual “self-petitions,” such as battered spouses and children, certain widows and widowers, and applicants seeking temporary admission despite being inadmissible (section 212(d)(3)(A) waiver).

          (2) Where to file — Unlike appeals from the decisions of immigration judges, appeals of visa petition denials are filed directly with DHS, in accordance with the applicable regulations, any instructions that appear on the DHS decision, and any instructions that appear on the reverse of the Notice of Appeal (Form EOIR‑29).  See generally 8 C.F.R. § 1003.3(a)(2).  The appeal must be filed with the DHS office having administrative control over the petition record.

          (3) When to file — The deadline for the appeal is 30 days from the date of service of the decision being appealed.

          (4) Fee — The filing fee for a petition-based appeal is $110.  See 8 C.F.R. § 1003.8(b).  Unlike appeals of immigration judge decisions, the fee for a petition-based appeal is filed directly with DHS, in accordance with DHS instructions.  The fee should be paid in the manner instructed by DHS.

          (5) Representation — A petitioner may be represented by a practitioner of record through the filing of a Notice of Appearance (Form EOIR-27).  See generally Chapter 2.1(b) (Entering an Appearance as the Practitioner of Record).  The practitioner should file the Form EOIR-27 directly with DHS, together with the Notice of Appeal (Form EOIR-29).  See 8 C.F.R. § 1292.4(a).  Until the Board confirms that it has received the petition record from DHS, as discussed in subsection (d) below, practitioners must submit the Form EOIR-27 directly with DHS and should not submit a Form EOIR-27 directly with the Board.  Any Form EOIR-27 received prior to the Board receiving the petition record will not be recognized and will not be forwarded to DHS for inclusion in the petition record.  Note that the Form EOIR-27 is not the one used to appear before DHS (Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28)) and that the Board will not recognize a practitioner using Form G-28.

Practitioners are not permitted to make a limited appearance for document assistance through the Notice of Limited Appearance (Form EOIR-60) in cases involving visa petitions adjudicated before the Board.  Any Form EOIR-60 and the associated assisted documents will not be recognized and will be rejected.  Practitioners who provide document assistance in such cases must file a Notice of Appearance (Form EOIR-27) as discussed above.  See Chapter 2.1(c)(3) (Limited Appearances for Document Assistance Only Permitted in Cases that Originated in the Immigration Court).

          (6) Supporting briefs — Briefs, if desired, are filed with DHS, at the same office as the Notice of Appeal (Form EOIR‑29) and in accordance with any briefing schedule set by DHS.  See 8 C.F.R. § 1003.3(c)(2).  Requests to extend the time for filing a brief should be directed to DHS.  In rare instances, the Board may, in its discretion, authorize briefs to be filed directly with the Board.  8 C.F.R. § 1003.3(c)(2).

Absent special instructions from DHS, briefs on visa petition appeals should generally follow the guidelines set forth in Chapters 3.3 (Documents) and 4.6 (Appeal Briefs).

          (7) Evidence — The Board does not consider new evidence on appeal. If new evidence is submitted in the course of an appeal, the submission may be deemed a motion to remand the petition to DHS for consideration of that new evidence.  If the petitioner wishes to submit new evidence, the petitioner should articulate the purpose of the new evidence and explain its prior unavailability.  Any document submitted to the Board should comport with the guidelines set forth in Chapter 3.3 (Documents).

However, the Board will generally not consider evidence – or remand the petition – where the proffered evidence was expressly requested by DHS and the petitioner was given a reasonable opportunity to provide it before the petition was adjudicated by DHS.  See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988).

          (8) Stipulations — The Board encourages the parties, whenever possible, to stipulate to any facts or events that pertain to the adjudication of the visa petition.

          (9) Electronic filing unavailable — Visa petitions are not available for electronic filing through ECAS.  Accordingly, all documents related to a visa petition must be submitted as a paper filing.

(d) Processing — Once an appeal has been properly filed with DHS and the petition record is complete, DHS forwards the petition record to the Board for adjudication of the appeal.  After the Board receives the record from DHS, the Board issues a notice to the parties acknowledging it has the record and the appeal.

          (1) Record on appeal — The record on appeal consists of all decisions and documents in the petition record, including some or all of the following items:  visa petition and supporting documentation, DHS notices, evidence submitted in response to DHS notices, DHS decisions, the Notice of Appeal, any briefs on appeal, the record of any prior DHS action, and the record of any prior Board action.

          (2) Briefing schedule — Briefing schedules, if any, are issued by DHS and are to be completed prior to the forwarding of the record to the Board.  Accordingly, the Board generally does not issue briefing schedules in visa petition cases.  See Chapter 9.3(c)(6) (Supporting briefs).

          (3) Status inquiries/DHS — Until the record is received by the Board, all status inquiries must be directed to the DHS office where the appeal was filed.  The Board has no record of the appeal until the record is received by the Board.  Since the Board and DHS are distinct and separate entities, the Board cannot track or provide information on cases that remain within the possession of DHS.

          (4) Status inquiries/Board — Confirmation that the Board has received a petition record from DHS can be obtained from the Clerk’s Office.  See Appendix A (Directory).  The Board tracks petition-based appeals by the beneficiary’s name and A-number.  All status inquiries must contain this information.  See generally Chapter 1.6(a) (All Communications).

          (5) Adjudication — Upon the entry of a decision, the Board serves the decision upon the parties by regular mail.  An order issued by the Board is final, unless and until it is stayed, modified, rescinded, or overruled by the Board, the Attorney General, or a federal court.  An order is deemed effective as of its issuance date unless the order provides otherwise.  See Chapter 1.4(d) (Board Decisions).

(e) Motions — Motions filed during the pendency of an appeal should be filed where the record is located.  Motions may not be filed with the Board until the petition and record have been received by the Board.  See Chapter 9.3(d)(4) (Status inquiries/Board).

All motions filed subsequent to the Board’s adjudication of an appeal, including motions to reopen and motions to reconsider the Board’s decision are to be filed with the DHS office having administrative control over the record, not with the Board.  8 C.F.R. § 1003.2(g)(2)(ii).

(f) Withdrawal of Appeal — The petitioner may, at any time prior to the entry of a decision by the Board, voluntarily withdraw the appeal.  To withdraw an appeal, the petitioner should file a written request, with a cover page labeled “WITHDRAWAL OF VISA PETITION APPEAL” with either DHS or the Board, whichever holds the file at the time the withdrawal is submitted.  See Chapter 4.11 (Withdrawing an Appeal), Appendix E (Cover Pages).