You've just received devastating news: your inadmissible relative's hardship waiver has been denied. The denial letter said you can appeal the decision, but is that the best thing to do?
It depends.
Assuming the inadmissible relative has qualifying relatives and is otherwise eligible for the hardship waiver, these are general rules that I follow.
Re-File
1) The inadmissible relative is outside the U.S.
Why re-file rather than appeal? A re-file is faster.
Appeals are sent to the Administrative Appeals Office (AAO). The AAO takes a long time to make a decision on an appeal: typically about 2 years. If the inadmissible relative is outside the U.S., then that is another 2 years apart, more if the appeal is denied.
By the time a waiver is denied, most inadmissible relatives have already been outside the U.S. for a year or more. So an appeal means at least 2 more years apart.
Depending on the consulate, your inadmissible relative could be re-filing the hardship waiver in about 4-6 months with a decision another 2-12 months after filing. That's 6-18 months, i.e. less than 2 years.
I re-file consulate waivers even if I think the evidence suggests the waiver was wrongly denied for no other reason than re-filing is faster. My fee structure is set so there is no difference to the client whether the case is appealed or re-filed.
2) The inadmissible relative is inside the U.S. and eligible for adjustment of status and little evidence or the wrong type of evidence was submitted with the waiver application.
An appeal is based on the evidence and facts presented in the original application. New evidence cannot be submitted. If the original evidence suggests USCIS was correct to deny the waiver, then re-filing makes more sense because the appeal is likely to be denied.
Re-filing needs to be done relatively promptly. Wait too long and the inadmissible relative risks being referred to immigration court for removal proceedings.
Appeal
Spouse or child is inside the U.S. and eligible for adjustment of status and the application had lots of good evidence consistent with case law on hardship waivers.
Why appeal instead of re-file?
Because sometimes USCIS does make mistakes, particularly the district offices. District offices do not adjudicate hardship waivers as often as some consulates so lack familiarity with some of the case law.
While the appeal is pending, your inadmissible relative will not be placed into removal proceedings.
What about inadmissible relatives who are in the U.S. and not eligible for adjustment of status?
This group is the most difficult because they often are not eligible to re-file the hardship waiver at the consulate (usually because they have triggered the so-called "permanent bar"). For these clients, neither a re-file nor an appeal is appropriate. Instead, the inadmissible client has to be assessed for possible cancellation of removal for non-permanent residents.
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