On occasion, despite your best efforts, your application to USCIS may be denied. When that is the case, the first thing clients want to know is what their options are for appealing the decision.
There are two basic paths you can take when you find yourself in a situation like this.
When you receive an unfavorable decision from USCIS, the decision you receive will usually include information on whether you can appeal it, and where you can do so. Formally speaking, an appeal is a request to a different authority to review an unfavorable decision—you are going beyond that particular USCIS office in hope that the appeals office will see things a different way.
Appeals usually go one of two places: the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice. The BIA and the AAO are administrative appellate entities that have jurisdiction over different types of immigration cases, and which one you go with will depend on the type of application you have filed.
Motions to Reconsider
Unlike an appeal, which refers the decision to a different agency, a motion to reconsider is a request for the same USCIS office that has issued the decision to review its decision again. Importantly, while only some decisions are eligible for an appeal, all decisions are eligible for filing a motion to reconsider.
A motion to reopen is a request to the office that issued the unfavorable decision to review its decision based on facts that were not available at the time of your initial application. By definition, a motion to reopen must include new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying application or petition. Normally, a motion to reopen must be filed within 30 days.
A motion to reconsider is a request to the office that issued the unfavorable decision to review its decision based on your belief that their decision goes directly against a certain law or policy. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, pointing out specifically which laws or policies are related to the denial. These must normally be filed within 30 days as well.
Most appeals are filed using Form I-290B, Notice of Appeal or Motion but there are some exceptions:
- Appeals of decisions on an N-400, Application for Naturalization, are made on Form N‑336, Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336.
- Appeals of decisions on an I-130, Petition for Alien Relative, or other decisions that are appealed to the BIA, are filed on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer.
Most motions are filed on Form I-290B, Notice of Appeal or Motion with the appropriate fee. If your motion needs to be filed on a different form, your denial or revocation notice will include the appropriate form information.
Please note that a written letter submitted to USCIS is not considered a motion. Motions must be filed on the appropriate form and submitted with the required fee.
Generally, you must file an appeal or motion within 30 days from the date of the decision (not the date you received the decision). A shorter appeal period may apply to some cases such as the revocation of the approval of a petition, which has a 15-day deadline. Your decision will tell you how long you have to file the appeal. There is no extension to this deadline. However, an extra 3 days is provided when your decision is mailed to you (33 days in the case of denial and 18 days in the case of revocation).
When will I hear back?
The processing time for appeals and motions can vary. When filing an appeal or a motion, it is a virtual certainty that you have involved an immigration attorney, so if you have any questions about the state of your appeal, you can reach out to your attorney at any time.
Have a question about your denied application? Need to file an appeal or a motion? We are here to help, contact us today!