Upon receiving an unfavorable decision from U.S. Citizenship and Immigration Services (USCIS), an applicant may wish to appeal. Such a recourse can be made through the Administrative Appeals Office (AAO) or to the Board of Immigration Appeals (BIA), an office within the U.S. Department of Justice that usually deals with family-based visa petition appeals or appeals of orders of removal issued by immigration judges. Certain case types, such as adjustment of status cases (Form I-485), cannot be appealed. When seeking to have their cases re-examined, applicants can choose either to file an appeal or a motion.
If an appeal is an option, the applicant’s denial notice will include information about the appeals process. When you file an appeal, you are requesting that AAO reviews the decision. However, the officer who made the original decision will examine the appeal to determine whether it has provided any new evidence or argument that warrants reopening or reconsidering his or her decision. The officer will then send the appeal to AAO for further review in the event he or she determines that reconsideration or reopening is not warranted. In total, the process can take as long as six months or more.
Applicants usually have 30 days to file an appeal after the date of the decision (i.e. the date listed on the decision, not the date you actually received it). The decision notice will state the length of the appeal period. Because extensions are not offered for appeals, you should try to file your appeal as soon as possible. In your appeal, you should submit sufficient, persuasive reasons explaining why the earlier decision was made in error, which can take the form of a brief submitted either with or following the application for appeal.
Alternatively, an applicant may choose to submit a motion to reopen or a motion to reconsider.
A motion to reopen is a request to the original officer to review his or her decision. A motion to reopen is based on new evidence or changed circumstances and must provide this new information with affidavits or documentary evidence. Under certain conditions, a motion to reopen may also be filed when an application or petition was denied due to abandonment, or failure to respond timely.
A motion to reconsider is a request to the original officer to review his or her decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration. A motion to reconsider must be supported by any relevant decisions to establish that the decision was based on an incorrect application of law or USCIS policy. Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
In summary, a motion to reopen is based on new factual evidence provided by the petitioner, while a motion to reconsider is based on legal argumentation demonstrated that USCIS applied the law incorrectly.
With the exception of motions regarding asylum applications, most motions can be filed using Form I-290B, Notice of Appeal or Motion, unless otherwise stated on the denial notice. Generally, motions should be filed within 30 days of the date of the decision. The deadline stipulated to reopen can be extended only at the discretion of USCIS if the applicant can demonstrate that the delay was reasonable and beyond his or her control. A brief is not required to be filed with the motion, but the motion must provide sufficient explanation as to why the applicant thinks the earlier decision was in error. Unlike an appeal, which allows for a brief to be submitted after the appeal itself is submitted, in the case of a motion, any accompanying brief must be filed concurrently with the motion. It can take 90 days or longer for USCIS to adjudicate a motion. If the motion is denied or dismissed, a decision on the motion can be appealed to AAO, but only if the initial decision was originally appealable to the AAO.
It is important to note that an appeal or motion does not suspend any decision made about the case or extend a previously set departure date.
For more information on appeals and motions, click here.
If you are considering filing an appeal or motion after receiving an unfavorable decision from USCIS, please email us at firstname.lastname@example.org. Our experienced immigration attorneys will be able to assist you with any questions you have about the appeals process.
The NIW process is complex and, at times, a bit convoluted. We recommend that you seek the assistance of experienced immigration attorneys. Over the past two decades, we have successfully represented thousands of clients in their NIW cases. If you would like to contact us, please call us at (713) 771-8433 or visit us at one of our seven locations. You can also send us an e-mail at email@example.com. Our superior attorneys will ensure that you receive only the highest quality of service.
Read the USCIS ruling (Matter of Dhanasar) governing NIW here. And for more detailed information about the National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page: