Our firm has received many inquiries from individuals and companies alike since the U.S. Citizenship and Immigration Services (USCIS) started issuing denials of applications and petitions. Decisions of the USCIS can sometimes be challenged. A motion to appeal is probably more common in immigration matters. However, there are times when a motion to reopen or a motion to reconsider could be a more appropriate choice. Are you facing a USCIS denial and confused by the options? An overview of these legal procedures is included below.
Higher View of USCIS Denials
A request to have an unfavorable decision reviewed by a higher authority is called an appeal. Immigration proceedings before the USCIS are appealed to the Administrative Appeals Office (AAO). Appeals of decisions that involve family-based visa issues are heard by the Board of Immigration Appeals (BIA). Other types of cases (e.g., applications for adjustment of status or Form I-485 proceedings) have no right to appeal.
Challenging USCIS with an Appeal
Traditionally, when the USCIS rules on a denial decision, they advise the applicant or petitioner whether they can pursue an appeal, the exact form they should use, and which appellate office has jurisdiction over their appeal. It should be noted that because the USCIS mentions where and how you can file an appeal should not in any way be interpreted as saying that an appeal would probably be successful. What the USCIS shares is helpful information if the applicant wishes to pursue an appeal.
Cases that Cannot be Appealed
There are some USCIS cases that contain specific wording that the decision “cannot be appealed.” That language does not mean there are no other options to pursue. When the appeal option is out, USCIS decisions may still be challenged through motions to reopen or reconsider.
Challenges by Motions
Motion challenges are filed in the same service center or field office as the USCIS issuing the denial. Ironically, the same officer who denied the case frequently reviews the challenge motions which argue that the USCIS decision was in error and ask the USCIS to reexamine and reverse its earlier denial. While they may sound like the same thing, different requirements apply to motions to reopen and motions to reconsider. It is critical that you carefully consider the requirements for each motion when trying to determine whether either motion could successfully overcome a denial.
Motion to Reconsider
Your legal arguments, should you choose to file a motion to reconsider, should be based on why the decision is in error. The three most common arguments include:
- the USCIS misapplied or misinterpreted the law,
- the USCIS misinterpreted or disregarded the facts, or
- a combination of both errors of fact and law.
Evidence which supports your argument that the USCIS decision is in error should be presented through existing law, current regulations, policy, and prior case decisions. If your arguments are successful and the USCIS is convinced by your motion to reconsider, the USCIS generally reopens the case and approves the motion at the same time. If a technical matter makes immediate approval impossible, the USCIS will often reopen the case, put it into a “pending” status, and wait until it can approve the case as previously described.
Motion to Reopen
The difference between a motion to reopen and the motion to reconsider we just discussed is arguments for a motion to reopen must introduce facts that were not previously available. Affidavits or new factual evidence you have discovered should support your arguments. In order for facts to be considered new, the evidence could not possibly have been submitted at the original proceeding. You cannot use a motion to reopen to present evidence you chose not to use at the original proceeding.
It must be something that was unavailable at the time of the first hearing. Note that in cases denied on the basis of abandonment, you must follow a different set of requirements when filing a motion to reopen. If you are successful in convincing the USCIS that your motion to reopen meets the requirements, the USCIS will return the underlying case to pending status. The USCIS may then review all of the evidence from the original proceeding and either approve or deny the case.
Deadlines to File Motions or Appeals
Currently, you have 30 days from the date of an unfavorable USCIS decision to file an appeal or motion. If the method of delivery of the denial decision to the applicant or the petitioner was mail through the United States Postal Service, an additional three days are allowed to meet the filing deadline. If the deadline falls on a weekend or federal holiday, another rule allows for the due date to roll over to the next business day.
Do not wait until the last minute to file motions or appeals. In order to avoid missing an important filing deadline, double check all instructions as well as the governing body’s current filing procedures. You may file a notice of appeal within the 30-day (or 33-day) deadline and petition for additional time to file your supporting legal brief. The new filing deadline for the brief and all ancillary documents becomes 30 days after the date the notice of appeal was signed.
Missing a Deadline
Missing a deadline will cancel any chance of filing an appeal or motion under just about every scenario. However, in immigration law, there are a few exceptions:
- If an appeal is filed late, the AAO will still consider it, but only as a motion to reconsider or a motion to reopen. In order for the ruling body to consider either of these motions, you still have to have met the filing requirements specific to each motion.
- The AAO will not accept a motion to reconsider if it is filed late.
- The USCIS requires convincing evidence that a delay was reasonable and beyond their control before it will allow late filing of a motion to reopen.
Who May File an Appeal or Motion before USCIS?
If the application or petition that is being contested was filed by an individual or employer, the individual or employer will have legal standing to file a motion or appeal challenging the USCIS decision. Legal standing is also granted to attorneys to file appeals and motions on behalf of their clients.
USCIS Processing Times
Currently, processing times for motions before the USCIS vary significantly.
- Some cases reach resolution within a very short period of time while other cases take months or even years.
- Processing times for appeals filed with the AAO or the BIA are currently extremely long. Most appeals before the AAO and BIA take more than a year.
- Expedited motions and appeals before the USCIS require satisfaction of some very restrictive general criteria.
Consultations Are Available!
If you have received a denial from USCIS, the immigration lawyers at Pride Immigration Law Firm PLLC are ready to start assisting you with your case. With decades of combined experience, we are confident in our ability to help craft a legal solution that is tailored to fit your needs. Schedule a consultation by calling or by contacting our attorneys online. We want you to understand your options before making an important decision.
Beeraj Patel, Esq.
Latest posts by Beeraj Patel, Esq. (see all)
- A 2021 Checklist For The K1 Visa Process - April 12, 2021
- How To File An Application For Permanent Labor Certification - March 29, 2021
- What Is The Permanent Labor Certification Process? - March 15, 2021