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niw got denied. Can I appeal?

Discussion in 'National Interest Waiver and EB1' started by researcherinla, Jun 5, 2017.

  1. researcherinla

    researcherinla New Member

    My case got denied two weeks ago.

    1. appeal
    To appeal an unfavorable decision to the AAO, a person or entity must have legal standing in the proceeding. USCIS regulations provide that a petitioner or an applicant has legal standing in an appeal before the AAO, while the beneficiary of a petition or another third party does not

    2. motion
    The appellant or representative of record must file the motion. Except where the beneficiary is also a self-petitioner, USCIS regulations state that the beneficiary of a petition is not a party to the proceeding and does not have standing to file a motion.

    But I self-petitioned.
    So I'm confused. does this mean that I need a lawyer to file an appeal or motion?

    Please let me know if I can appeal when I already self-petitioned. or Can I hire a lawyer for this ?
    They are saying that I have no standing to file a motion.
  2. CalGreenCard

    CalGreenCard Registered Users (C)

    Just noticed this post. The time limit for appealing your particular case has now expired so you need to live with whatever decision you made regarding appealing or not.

    But just for reference--yes, the petitioner (you) has standing to appeal if done in a timely manner. I'm not sure I see a good reason, though, for filing an appeal which would be both pro se (no attorney) an a self-petition (no petitioner other than yourself). I believe that appeals of immigration matters are difficult, and generally only filed by attorneys when there has been inconsistency in decisions made and they are hoping for an appeal decision that establishes some precedent or consistency.

    An attorney might encourage you to appeal if the decision were seen to be particularly unjust and the attorney felt you might serve as a useful test case if you were to be so willing. Such an appeal, however, would need to be based on carefully crafted legal arguments and there is simply no benefit that I can see to going pro se. I'm also guessing that--unless there were something really, really egregious about the denial decision--an attorney would be reluctant to get involved in an appeal where the original case was filed pro se.

    Instead, if you don't agree with the decision, you can file a new petition addressing the reasons for the denial. This is much more likely to succeed assuming you basically have a solid case and also is something that you can do at any time--for example now even though the time window for an appeal is past.

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