I 140 appeal are you legal

[Susie]

Hi

I am trying to research, does anyone know the answer?

If you have an appeal in process for I 140 denial are you legal to stay in the USA till decision?

If a company files I 140 and I 485 concurrently and then the I 140 is denied then it appears the USCIS cancels/denies the I 485

[v2002]

Susie Hi

I am trying to research, does anyone know the answer?
** Its an old post but sue I am responding to this post for everyone else having similar Q.

If you have an appeal in process for I 140 denial are you legal to stay in the USA till decision?
** Yes any one who is waiting for the decision on any case made under any Cat is deemed to be in legal status till a decision is made on his/her case
however its important that the appeal was made within the correct timeframe and the case was where you could appeal (some cases one cannot appeal the decision at all), also another aspect to take care if the case is still denied one will have to leave the country within 10 days from decision in order to avoid any further action like BAR to re-enter the country.

If a company files I 140 and I 485 concurrently and then the I 140 is denied then it appears the USCIS cancels/denies the I 485

** Yes if one application is denied unfortunately everything else in sequence is deemed to be null & void ....But it can (remain active) be reactivated if appeal turn-out to be in your favour.

[mark]

Is all lost if the appeal is denied or is there any redress in a higher court?

[v2002]

Is all lost if the appeal is denied or is there any redress in a higher court?
:) This is what the law says .....Hope it helps.:)...
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 Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. Please see 8 CFR § 103.1 (f)(3)(iii) for further information . If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO 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 (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or 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.

(((((The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003), with one exception - petitions for approval of schools and the appeals of denials of such petitions are now the responsibility of Immigration and Customs Enforcement. There is no appellate review of denials of extension of stay or change of nonimmigrant status. Only one appeal may be filed for each denial or revocation; there is no appellate review of an appellate decision.))))

[Carol]

Is all lost if the appeal is denied or is there any redress in a higher court?

Hi
Because it is an Immigrant visa petition you can go above the AAO to the BIA which is an independant appeals board, and has nothing to do with USCIS, (but you can only go to them if the AAO refuse your appeal) please note everyone if you are refused a none immigrant visa appeal you can not go above the AAO

Hope this helps, and good luck, I have a lot of info regarding BIA if you need it IM me

[Carl]

If possible you could be better off just re applying rather than appealing. I chose to re apply and we were approved. I dont know anyone who has had a positive outcome from a appeal, although there must be some that do.

[Carol]

If possible you could be better off just re applying rather than appealing. I chose to re apply and we were approved. I dont know anyone who has had a positive outcome from a appeal, although there must be some that do.

I agree with Carl he has his visa !!! Everyone I know that has gone through the AAO has been refused !!! but if you have aready done the AAO and been refused you can go BIA

[Susie]

I agree with Carl he has his visa !!! Everyone I know that has gone through the AAO has been refused !!! but if you have aready done the AAO and been refused you can go BIA


it does eem that 95% of appeals are denied so yes agree with you both

[v2002]

Carl you did not mention one VERY important fact here ... That you did file an appeal & your appeal was in PENDING. When you reapplied and got approval... So in your own words it should be like this....
Appeal the denial ...
Than also reapply for the L1.... if you get approved. Move on ----Don’t bother to bring up the appeal just widraw it. Like you did lol.

**Also you did have a (valid) I-94 in hand when you reapplied.

USCIS is too LAZY to dig up your long forgotten paperwork from DUMP PILES.

If possible you could be better off just re applying rather than appealing. I chose to re apply and we were approved. I dont know anyone who has had a positive outcome from a appeal, although there must be some that do.

[JulieC]

I read about 100 decisions of the AAO on I-140 appeals and almost all were denied, I think 5% success rate is about right. Also we were told they could only deny your AAO appeal on the basis of the original denial when in fact we were denied on two more bases than the original one. We were advised by a bad attorney not to re-file, very poor advice. Even with the same application, you may geta different officer. With 1-140 in appeal, 1-485 withdrawn and no underlying visa you are not officially in status so I disagree with V2002 on this and we took several opinions, though they do nothing to remove you and if the appeal succeeds or you re-file and that succeeds everything comes right as they give you status retrospectively. If it fails and takes more than 6 months to adjudicate the eppeal and you stay till the decision, you could theoretically get a bar. All of this they checked up on when we applied for an E2 subsequently, we left within the 6 months, I think we would have had a hard time had we not have.

[Carl]

Carl you did not mention one VERY important fact here ... That you did file an appeal & your appeal was in PENDING. When you reapplied and got approval... So in your own words it should be like this....
Appeal the denial ...
Than also reapply for the L1.... if you get approved. Move on ----Don’t bother to bring up the appeal just widraw it. Like you did lol.

**Also you did have a (valid) I-94 in hand when you reapplied.

USCIS is too LAZY to dig up your long forgotten paperwork from DUMP PILES.

Hi V2002 :hug: Yes thats right exept we didnt have a valid I-94, just a appeal receipt, I-94 had run out nearly 2 years proir to re applying, also did I-140 just after reaplying for the L1 renewal, so we had a valid I-94 for the I-485 cos.

Happy thanksgiving.

Carl.

[v2002]

Julie. C I do not know what do you disagree with me on. If an I-140 is denied you can appeal... if your status as L 1 is still good you can reapply with new I-140 covering the short comings of your first I-140 application that is what Carl did as his I-140 was filed incorrectly by his VA, before the appeal got denied he got approval on new I-140. So he went ahead to withdraw his appeal and filed for I-485 based on his new approval of I-140 and got G.C.

As H AND L VISA HOLDER IF YOUR APPLICATION OF I140 is denied and you still have time on your status you can continue living legal based on your visa status. Remember application for I140 is a future employment not current.

You can also reapply for I-140. You do not run straight out of status just because your I-140 was denied hope this clears. You would be illegal and out of status only under following circumstance….
You filed I-140 and I485 concurrently and you do not have time left on H or L for further extension therefore all you have is AOS pending. If your I140 is denied you are out of status as your I485 is null & void. Look’s like you DID HAVE A BAD VA & a bad advice. :D
I-140 has nothing to do with your visa status or Is it still very confusing ?:D

I disagree with V2002 on this and we took several opinions,

[v2002]

Carl you are saying the same thing as me ...
1. You were not out of status on your L when you got I140 denied and applied for appeal.... While you were waiting on appeal decision you did get your L renewal ...and you filed new I-140 Got approved and filed for I485 ..
So you were in STATUS as far as your L was concerned. :D.
Short & sweet " At no time were you out of status from visa point of view" lol

Hi V2002 :hug: Yes thats right exept we didnt have a valid I-94, just a appeal receipt, I-94 had run out nearly 2 years proir to re applying, also did I-140 just after reaplying for the L1 renewal, so we had a valid I-94 for the I-485 cos.
Happy thanksgiving.

Carl.

[Carl]

Yes thats right.

[JulieC]

If you read my replly again, V2002, you will see I say if you are in an 1-140 appeal with no underlying visa you are not in status, I would agree with you if you still have a valid L1, you still have status under that, we did not and many people advised to file for 1-140 when they are turned down for L1 do not. Our L1 appeal was turned down after a year which would have made us retrospectively out of status and subject to a bar as Carol was adjudged to be earlier this year. The 1-140 appeal would not have saved us. Re-filing would have, or may have, but an attorney advised us not to re-file as they could only address the cause of the original denial on the appeal and she was 100 % convinced they were wrong. They eventually denied the appeal on the original basis and on two more. Goes to show attorneys dont know everything. When we went for an E2, we were subjected to intense questioning on all this and the date when we left the US was checked out. It was made clear that if we had overstayed the six months grace of the attorney general period by one day we would not have got the E2.

[v2002]

JulieC
I did read your Post and thought you and I were saying the same thing except that you added "you did not agree with me":D Looks like we are on the same page. LOL :hug:

[Carol]

Is all lost if the appeal is denied or is there any redress in a higher court?

If your on a non immigrant visa visa (i.e..L-1/E-2 visa) you can only appeal to AAO (administrative Appeals Office) if you are appealing a decision for a immigrant visa (i.e..Green card) you can go to BIA (Board of immigration appeals) which is an independant body, you can then appeal the decision of the AAO.
Hope this helps

[Sharon]

If your on a non immigrant visa visa (i.e..L-1/E-2 visa) you can only appeal to AAO (administrative Appeals Office) if you are appealing a decision for a immigrant visa (i.e..Green card) you can go to BIA (Board of immigration appeals) which is an independant body, you can then appeal the decision of the AAO.
Hope this helps

hi carol, sorry I am confused, not hard for me but if appeal is denied by the BIA who is the AAO? and who do you appeal this with?

[Carol]

hi carol, sorry I am confused, not hard for me but if appeal is denied by the BIA who is the AAO? and who do you appeal this with?

Hi Sharon
AAO is Administrative Appeals Office this is were you start but it is part of USCIS, BIA Board of Immigration Appeals in fedral court and independant from USCIS
hope this helps
Carol