In this article we will look at the different options on an immigration appeal process and a motion to reopen or reconsider. They are closely related although different migration actions as we will see throughout the article.
If you need help appealing an unfavorable decision from USCIS our immigration lawyers are at your service. You can use our private consultation, since it does not commit you to anything and thus solve your questions.
What is an immigration appeal process?
An immigration appeal is a request for a different authority to review an unfavorable decision by USCIS. You can appeal some decisions to:
- USCIS Administrative Appeals Office (AAO) or;
- Board of Immigration Appeals (BIA).
Note: Your notice of revocation or denial will inform you of the option to appeal the decision and where to file it.
How to file an immigration appeal in 2021
Most appeals are filed using Form I-290B, Notice of Appeal or Motion. However, there are exceptions to the following unfavorable appeals:
- Form N-400: They are made on Form N-336.
- Applications for special immigrant workers, legalization and cancellation of temporary legal resident status: They are made on Form I-694.
- Form I-130 and other decisions appealed to the BIA: They are filed with Form EOIR-29 with the office that made the decision.
Note: The adverse decision notice also indicates the form you should use in your appeal.
Time available to file the appeal and where to do it
As a general rule, you must file the immigration appeal within 30 days from the date of the decision.
Some cases have a shorter period, such as revocation proceeding, which is 15 days.
- This is not the date you received the decision.
- There are no extensions on this deadline.
- If the decision is mailed to you if you add 3 additional days. Therefore, you would have:
- 33 days in denials.
- 18 days in case of revocation.
To find out where to file the appeal please review the USCIS page regarding the filing of Form I-290B.
Note: If you send it by mail, make sure it arrives at the office within the stipulated time. Do not send your payments or fee forms directly to the AAO.
Note: You do not need to file a brief with your appeal, but you can send it if you want. You may also submit your writing and / or supporting evidence directly to the AAO within 30 days of filing your appeal.
Waiver of filing fee on immigration appeal process
DHS regulation, 8 CFR 103.7 (c), specifies cases in which USCIS may exempt you from paying the filing fee for inability to pay.
When will I receive the AAO’s decision on my immigration appeal process?
The AAO attempts to complete the review of the appeal within 180 days from the receipt of the complete case record. That is, after the initial review of the fields.
Some cases may take more than 180 days for reasons beyond the control of the AAO. Examples of this may be a complex case that needs further evaluation or the need for additional documentation for the record.
What is a motion to reopen?
The motion is a specific request to the USCIS office, which granted the unfavorable decision, to review its decision. This decision will be reviewed based on new facts and must be supported by affidavits and other documentation. The purpose is to demonstrate your eligibility at the time you submitted the base application.
Note: You can file a motion even if your case is not eligible for an appeal.
Note: By “new facts” we mean events that have not been submitted earlier in the process. These must be relevant to the subject of the motion.
If the application was denied due to abandonment, you can file a motion to reopen if it shows the following:
- The evidence requested was not relevant;
- The required initial evidence was submitted along with the petition or request;
- You complied with the request for appearance or additional evidence during the assigned period or;
- The request for appearance or evidence was not sent to the address on record.
What is a motion to reconsider?
A motion to reconsider is a request to the office that issued the unfavorable decision to review its decision based on an incorrect application of the policy or law.
This motion must demonstrate that the decision was erroneous based on evidence from the record at the time of the decision. The motion must be supported by regulations, citations of the appropriate statutes, or preceding decisions when presented.
Note: Unlike the motion to reopen, no new evidence or facts are taken into account.
How, when and where to file a motion?
The motion is normally filed with Form I-290B along with the appropriate fee. In the event that the motion must be presented in another form, it will be indicated in the notification of denial or revocation.
Note: A letter written and mailed to USCIS is not a motion, you must use the appropriate form along with fees or waivers.
- As a general rule, you must file motions within 30 days from the decision date. Do not confuse this with the date you received it.
- You will have an additional 3 days if you mailed it.
- The time available to file the motion may only be extended at the discretion of USCIS. You must show that the delay had a reasonable reason and beyond your control.
Note: For asylum decisions you should not submit this Form or pay a fee for the motion. If you do not meet the deadlines, the director of the asylum office will decide whether or not to accept your motion. In our article on asylum in the United States, you have extensive information about this immigration benefit.
To find out where to file the motion please review USCIS page regarding the filing of Form I-290B. Remember that the notification of denial or revocation includes useful information in this regard.
- If you mail it, please make sure it arrives at the office within the stipulated time.
- Do not send payments or fee forms directly to the AAO.
Note: You are not required to send a letter, but you can do so if you wish. If you must present an explanation of why you consider the decision wrong or your motion may be rejected.
Exemption from filing fee on motion
DHS regulation, 8 CFR 103.7 (c), specifies cases in which USCIS may exempt you from paying the filing fee for inability to pay.
When will I receive the decision on the motion?
- USCIS will attempt to adjudicate the motions within 90 days.
- The AAO attempts to review the motions within 180 days of receiving the complete case file.
If you do not receive your decision, you can contact USCIS at 1-800-375-5283 and ask for a “request for service” or our attorneys to help you in the process.
What to do when a motion is dismissed or denied?
Only in the event that the original decision is appealable to the AAO you will be able to appeal again to the AAO.
If an asylum office dismisses or denies your motion in a case that received a final denial, it can file a new Form I-589.
- You will be subject to the same filing bans as in a new asylum application.
- You must file it directly with the asylum office of your place of residence.
- You must include a letter with your application reflecting that the previous asylum application was denied.
Note: USCIS service centers will not be able to accept new asylum applications in previously denied cases.
If you have any questions about the immigration appeal process or motions, our lawyers are at your service.
FAQs about the immigration appeal process and motions to reopen or reconsider
In the office we receive many questions related to appeals and motions. Here we include some of the most frequent that we have not covered in the article. At the end we also include a complete table showing the use of Form I-290B.
Decisions that can be appealed to the BIA
Whether in writing or orally, our experienced attorneys can prepare and file the appeal on your behalf. The following are some of the areas in which we can represent you:
- Deportation Orders: This includes cancellation of removal or withholding of removal, among others.
- Visa petitions for the United States.
- Immigration bail bonds.
- Delay or denial of citizenship.
Even if the BIA issues a final deportation order, we can fight your case in federal court. Contact our immigration lawyers specializing in deportation cases now.
Decisions that can be appealed to the AAO
Overall, the AAO is responsible for reviewing about 50 decisions of the United States Citizenship and Immigration Service regarding immigration applications and petitions. Some of these are the following:
- Visa applications (immigrants and non-immigrants) based on employment.
- Visa petitions for EB-5 immigrant investors .
- Temporary Protection Status Requests (TPS).
- K-1 fiancé (e) visa petitions.
- Inadmissibility waiver requests.
- Applications for a readmission permit in the U.S. after a removal or deportation process.
- Some special immigrant visa requests.
- Orphan petitions.
- Applications for T and U visas related application for adjustment of status.
- Applications related to certificates of naturalization and citizenship.
- Application to preserve the residence for naturalization purposes.
- Matters related to the breach of security bond determined by the Immigration and Customs Enforcement Service (ICE).
The AAO has no jurisdiction to hear decisions made by immigration courts (for example, deportation orders). Neither are those taken by the Department of Homeland Security (DHS). These decisions can be appealed in another instance like the Board of Immigration Appeals (BIA).
Can a beneficiary whose visa petition was denied or revoked file an immigration appeal or motion?
As a general rule, only the petitioner can file the appeal or motion for a revoked or denied visa.
Unless you are a VAWA self- petitioner, a widow (er) of a citizen, or have been otherwise authorized to file it yourself, you will not be able to do so.
However, if you are a Form I-140 beneficiary, you may be able to file a motion or appeal in a revocation process only. To do this you must meet the following requirements:
- You had an I-140 that USCIS later revoked;
- You filed an I-485 based on a valid I-140 and Form I-485 has been in process for 180 days or more;
- You filed a Supplement J to Form I-485 after January 17, 2017 to request the transfer of employment or sent the request before the same date through a written letter or other acceptable communication and;
- USCIS has approved the transfer request.
Note: If you meet the last 3 criteria mentioned above as a beneficiary of a petition and with an approved I-140, you can provide evidence in response to a notice with attempted revocation.
Use of Form I-290B for appeals or motions
There are two things to consider when requesting a review of an adverse decision using Form I-290B:
- The type of benefit that USCIS denied.
- If you want to file an immigration appeal or motion.
In the following table we show the benefits (form number) indicating the possibility of filing a motion or starting an immigration appeal process.
|USCIS rejected your request for the following form:||Can you appeal the decision?||Can you file a motion to reopen or reconsider?|
|I-129 (E-1, E-2, E-3, TN, H-1B1)||NOT||YES|
|I-129, H-1B, H-2, H-3, L, O, P, Q, R||YES, see note 1||YES|
|I-130||YES, using Form EOIR-29.||YES|
|I-131, Re-Entry Permit and Refugee Travel Document||YES||YES|
|I-131, (all others)||NOT||YES|
|I-192, see note 2||NOT||YES|
|I-360, Part 2, Item A, Items C to M||YES||YES|
|I-360, Part 2, Item B, Widow (er)||YES, using Form EOIR-29.||YES|
|I-360, Part 2, Items K and L||YES. Nor should you present rates||YES. Nor should you present rates|
|I-485, if denied solely due to failure to demonstrate trustworthy marriage while applying||YES||YES|
|I-485, for Indochinese refugees under any of: Public Law 106-429 sec. 586; o Public Law 95-145 sec. 103.||YES||YES|
|I-485, Part 2, Item H, Refugee||NOT||YES|
|I-485, Cuban Adjustment||NOT||YES|
|I-485, U and T Visas||YES||YES|
|I-485, Section 13||YES||YES|
|I-485, Part 2, Item H, LIFE Act||YES||NOT|
|I-485, Part 2, Item H, all others||NOT||YES|
|I-600 / I-600A||YES||YES|
|I-602||NOT||AND IT IS|
|I-612||YES, see note 3||YES, see note 3|
|I-687||YES, using Form I-694.||NO, see note 4|
|I-690||YES, using Form I-694.||YES|
|I-698||YES, using Form I-694.||NOT|
|I-700||YES, using Form I-694.||NOT|
|I-751||NO, see note 5||YES|
|I-800 and I-800A||YES||YES|
|I-829||NO, see note 5||YES|
|I-914 and I-914A||YES||YES|
|I-918 and I-918A||YES||YES|
|N-400||YES, using Form N-336||YES, see note 7|
|Certificate canceled in accordance with section 342 of the Immigration and Nationality Act (INA).||YES||YES|
- If a request for a change of status or extension of stay is denied, but the underlying request for nonimmigrant classification is approved, you can file a motion but not file for an immigration appeal process.
- Only T and U nonimmigrants can file Form I-192 with USCIS. All others will submit this form through the CBP from DHS.
- The decision is not reviewable if the denial is based on these cases:
- The number of exemptions granted to the State in which the foreign medical graduate will be employed will exceed 30 for that fiscal year.
- It is based on the adverse recommendation of the State Department.
If the denial is made for any other reason, you can file a motion or appeal the decision.
- There are exceptions that allow the motion to reopen (MTR) based on agreements and judicial decisions. For example, NWIRP and Proyecto San Pablo.
- Conditional residents in deportation proceedings when denied their Form I-751 or I-829 can request that the immigration judge reviews the denial. This review will occur during the removal process.
- You can request a hearing if your Form N-400 is denied after your eligibility interview and you think you can challenge the reasons for the denial.
For this, you must file Form N-336 with a fee within 30 days of receiving the denial notice. It will be 33 days if USCIS mailed you the notice.
With the N-336 sent you can schedule a hearing with an immigration officer to present testimonies and additional documentation in favor of your eligibility.
Applicants whose N-400 was denied because they failed the English or civics test and submitted the N-366 may retake any part of the failed test.
In the event that Form N-336 is not timely submitted:
- USCIS may consider it as a request for a motion if you meet the requirements for the motion to reopen or reconsider.
- The applicant does not need to file an I-290B since USCIS will treat N-336 as a motion.
- In cases like this, USCIS will make the decision based on the merits of the case.
- If the application does not meet the requirements for motions, USCIS will reject it because it was not filed on time and will not refund the filing fee.
If your N-400 case was administratively closed because you did not show up for the initial interview, you can submit a written request at no cost to reopen the case. No I-290B or N-336 is required.
- If USCIS NBC denies the N-400 application, NBC will provide information through the denial notice on how to file the motion. No fee payment or filing of I-290B is required.
Applicants with an N-400 application denied by a local USCIS office can file a motion on denial, with a fee and by following the instructions on Form I-290B.
The I-290B process allows reconsideration or reopening of N-400 decisions. This decision on an N-400 case is based on information in the applicant’s record.
For more information on the immigration appeal process or motions feel free to contact our lawyers.
With 50 years of combined experience, David and Ramiro can solve yout questions. The consultation is private and does not commit you to anything.