Immigration Agencies

Department of State

Bureau of Consular Affairs

Consular Posts

However, a decision of a consular officer with respect to the application of the law to the facts involved in a particular visa application is not subject to review. The Secretary of State can still issue an advisory opinion but it is not binding on the consular officer.

The scope of review is limited to a determination of whether a facially legitimate and bona fide reason exists for the denial.

National Visa Center (NVC)

The NVC is also responsible for initial processing of K-1 and K-3 visas after CIS has approved the required petitions.

Immigrant visa petitions

Applications for immigrant waivers of inadmissibility

Applications for naturalization

Adjustment of status

Change of status and extension of stay

Affirmative asylum applications

Applications for an Employment Authorization Document (EAD) (Work permit)

Advance parole

Administrative Appeals Office (AAO)

When a case involves an unusually complex or novel question of law or fact the CIS Director can certify the case to his office for review.

Certification is available not only for those cases decided by the AAO but also for cases adjudicated by a CIS officer that are not subject to appeal.

Cases NOT subject to appeal include:

•  denial of applications for change of status or extension of stay;

•  denial of applications for adjustment of status;

•  termination of an alien spouse’s conditional permanent residence;

•  denial of affirmative asylum applications

In addition to certification, another option for review is reopening or reconsideration of the CIS decision.

Denial of family-based immigrant petitions is appealed to the Board of Immigration Appeals (BIA)

Even when a removal order is entered against a foreign national based on a CIS denial, that denial CANNOT later be challenged in a petition for review of the removal order in Federal Circuit Court.

Failure of CIS to adjudicate a petition or application in a timely manner can be challenged in Federal District Court through the filing of a mandamus petition.

Customs and Border Protection (CBP)

Issuance of Notice to Appear (NTA) and referral of removal cases to ICE

Applications for non-immigrant waivers of inadmissibility

•  If the foreign national applies under the Visa Waiver Program (VWP)

•  In cases involving
fraud, willful misrepresentation, false claim to U.S. citizenship, or lack of a valid immigrant visa for an intending immigrant – in those instances the foreign national is subject to expedited removal

Instead of denying the application for admission the CBP Inspector can parole the foreign national into the U.S. for a deferred inspection. Parole may also be available for urgent humanitarian reasons.

The CBP Inspector may permit the foreign national to withdraw his application for admission and return home on the next flight.

Immigration and Customs Enforcement (ICE)

Investigation of alleged violations

Issuance of detainers, warrants, and Notice to Appear (NTA). Determination of whether to detain or release foreign nationals on bond

Initiation of removal proceedings

Administration of the SEVIS program

ICE’s initial custody and bond determination for detained foreign nationals can be challenged before an IJ, regardless of whether a NTA has been issued or filed with the Immigration Court, except for:

•  arriving aliens;

•  those charged with being deportable on security, terrorism and related grounds;

•  those subject to mandatory detention

However, the IJ can determine whether a foreign national was properly included in a category of persons subject to mandatory detention.

Attorney General

Executive Office for Immigration Review

Determination of whether a foreign national is subject to removability

Applications for relief from removal or deportation

Defensive asylum applications

Detention and bond determinations

Review of credible fear determinations made by asylum officers for arriving aliens

Claimed status review

Rescission of adjustment of status

There is no right to appeal expedited removal orders, denial of discretionary forms of relief (except with respect to asylum), removal orders based on certain criminal grounds.

However, judicial review is still available for constitutional claims or questions of law.

Immigration and Customs Enforcement (ICE)

Office of International Affairs (OIA)

Significant Public Interest Parole

Attorney General

Executive Office for Immigration Review

(2) Discrimination based on national origin or citizenship status

(3) Immigration-related document fraud

The Attorney General also may review ALJ or CAHO decisions in employer sanctions and document fraud cases.

There is no administrative appeal in discrimination cases.

All 3 types of cases are subject to judicial review

Civil Rights Division

Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)

Discrimination based on national origin by employers between 4 and 14 employees

The OSC then has 120 days to determine whether to file a complaint with OCAHO on behalf of the individual charging party. If the OSC chooses not to file a complaint, the individual may then file his own complaint directly with OCAHO.

Administrative proceedings initiated in OCAHO and presided by an Administrative Law Judge (ALJ)

Discrimination based on national origin by employers with 15 or more employees

Unlike OSC, the EEOC does not have explicit jurisdiction over claims of discrimination based on citizenship status. However, such claims can sometimes be construed as alleging national origin discrimination.

No charge may be filed both with the OSC and the EEOC with respect to an alleged discriminatory practice based on the same set of facts.

If EEOC is unable to successfully resolve the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his own behalf in Federal District Court.

Employment & Training Administration (ETA)

Employment Standards Administration (ESA)

If job opportunity is not covered by a collective bargaining agreement, the SWA will make a prevailing wage determination based on wage surveys conducted by the Bureau of Labor Statistics (BLS) under the Occupational Employment Statistics program (OES).

The SWA then forwards the appeal to the appropriate national processing center of the ETA – Atlanta or Chicago.

The director of the respective national processing center determines which certifying officer (CO) will review the appeal. The CO will review the appeal solely on the basis of the information upon which the prevailing wage determination was made.

Identifies areas in which individuals and employers have problems in dealing with CIS

Bureau of Educational and Cultural Affairs

Imposition of sanctions for program violations

Bureau of Consular Affairs

Office of Visa Services

Waiver Review Division

Bureau of Consular Affairs

Overseas Citizens Services

Office of Policy Review and Inter-Agency Liaison

If the State Department determines that loss of U.S. citizenship has occurred, an approved Certificate of Loss of Nationality is returned to the consular post. Consular officials then forward the certificate to the expatriated individual.

Department.

Reconsideration by the State Department is allowed on a discretionary basis. However, this is not a formal appeal and it does not toll the running of the five-year statute of limitations for bringing an action in federal court.

Bureau of Industry and Security (BIS)

From time to time the EAA authority lapses, and the EAR are maintained by Presidential order under the International Emergency Economic Powers Act (IEEPA)

EAR covers dual use items: articles designed for commercial purposes that can also have military application. Those items are identified on the Commerce Control List (CCL).

Any release to a foreign national of technology or software subject to the regulations is deemed to be an export to the home country of the foreign national. This is true even when the release occurs within the U.S. Such exports are commonly referred to as deemed exports.

Enforcement is vested in the Office of Export Enforcement (OEE)

Penalties can be both civil and criminal.

If a company is not sure whether a particular item is covered by the CCL and therefore subject to regulation, it can submit a commodity jurisdiction request to the Directorate of Defense Trade Controls (DDTC)

A hearing can be held before an Administrative Law Judge (ALJ) but most cases are settled at an earlier stage.

A commodity jurisdiction determination can be appealed by submitting a written request for reconsideration to the Director of the DDTC. A written response of the Director's determination will be provided within 30 days of receipt of the appeal.

An appeal of the Director's decision can then be made directly to the Assistant Secretary for Politico-Military Affairs.

Administrative Case Review Board (ACRB)

There is limited judicial review of temporary denial orders and of orders imposing a civil penalty or administrative sanctions. Judicial review is in the U. S. Court of Appeals for the District of Columbia Circuit.

Bureau of Political-Military Affairs

ITAR covers items that are inherently military in character. All such items are placed on the United States Munitions List (USML)

Any release to a foreign national of technology or software subject to the regulations is deemed to be an export to the home country of the foreign national. This is true even when the release occurs within the U.S. Such exports are commonly referred to as deemed exports.

Enforcement is carried out by Compliance Officers who work closely with Customs agents, intelligence officials, and federal prosecutors.

Penalties can be both civil and criminal.

If a determination is made that an article is subject to regulation, the company must apply for an export license. This applies to deemed exports as well.

When the DDTC issues a charging letter in civil proceedings, a hearing can be held before an Administrative Law Judge (ALJ) within the State Department.

The ALJ’s recommendation is advisory only. The Assistant Secretary of State for Political-Military Affairs will review the record, consider the report of the ALJ, and make an appropriate disposition of the case.

The Managing Director may issue an order debarring the respondent from participating in the export of defense articles or technical data or the furnishing of defense services, impose a civil penalty, or take such action as the ALJ may recommend.

A commodity jurisdiction determination can be appealed by submitting a written request for reconsideration to the Director of the DDTC. A written response of the Director's determination will be provided within 30 days of receipt of the appeal.
An appeal of the Director's decision can then be made directly to the Assistant Secretary for Politico-Military Affairs.

If a written request for reconsideration of an adverse decision is made within 30 days after a person has been informed of the decision, the U.S. person will be accorded an opportunity to present additional information. The case will then be reviewed by the DDTC.

An appeal can be filed with the Under Secretary of State for Arms Control and International Security.