Motions and Appeals as Options After USCIS Denial30 Dec 2011
After the U.S. Citizenship and Immigration Services (USCIS) has issued denials of applications and petitions, many individuals and companies seek help by contacting us at the Murthy Law Firm with their inquiries. It is sometimes possible to challenge the decision of the USCIS by filing a motion to reopen, a motion to reconsider, or an appeal. While the concept of an appeal is more widely known, in many immigration matters, the motion to reopen or motion to reconsider may be a more effective option. Following is an explanation of the differences between these procedures, which should help those facing case denials.
What is an Appeal?
An appeal is a request to a higher government authority to review the unfavorable decision. In the immigration context, most unfavorable decisions issued by the USCIS are appealed to the Administrative Appeals Office (AAO). Some decisions, however, such as those on family-based visa petitions, are appealed to the Board of Immigration Appeals (BIA). Certain case types, applications for adjustment of status (Form I-485), for example, are not subject to appeals.
USCIS May Offer Option in Denial Decision
A denial decision issued by the USCIS normally advises an applicant or petitioner of whether an appeal can be filed, of the form to use, and indicates the appropriate appellate office with jurisdiction over appeals of the particular case type. As explained in our July 1, 2011 NewsBrief, Four Lessons on the Instructions Denials Carry, available on MurthyDotCom, the fact that the government states that an appeal is an option should not be interpreted as the government’s suggestion that an appeal is likely to be successful. The information explains only that the appeal is a potential legal option.
Option if USCIS Decision Cannot be Appealed
Some USCIS denials, such as those involving Form I-485, contain language stating that the decision cannot be appealed. However, this does not mean that there are no options available to challenge the decision. Even when there is not an appeal option, decisions issued by the USCIS can potentially be challenged by filing motions to reopen or reconsider.
Motions to Reopen and Motions to Reconsider
A motion to reopen or a motion to reconsider is filed with the same USCIS service center or field office that issued the unfavorable decision in the particular case. These motions generally are reviewed by the same officer who denied the case. Both types of motion argue that the USCIS denial was incorrect, and request that the USCIS reconsider its earlier decision, and issue a favorable decision.
As explained below, there is a difference between a motion to reopen and a motion to reconsider. The requirements for each should be considered when deciding whether a denial could possibly be overcome through the filing of a motion.
Differences Between the Two Motions
Motion to Reconsider
A motion to reconsider the unfavorable decision should be based on legal arguments as to the reason the decision is wrong. These usually involve arguing that the USCIS misinterpreted or misapplied the law, disregarded or misinterpreted the facts, or a combination of both errors of fact and law. The argument/s generally rely upon the supporting evidence of existing law, regulations, policy, and case decisions as to why the decision was incorrect.
If the USCIS is persuaded by a motion to reconsider, the case is usually reopened and approved in one action. If immediate approval is not possible (in a case for which no visa number is available, for example), the USCIS generally will reconsider its earlier decision, reopen the case, and put it back into “pending” status until the case can be approved.
Motion to Reopen
A motion to reopen generally should be based on facts not previously available. It should be supported by affidavits or other new factual evidence. The requirement that the facts be “new” means that it generally is not enough to supply evidence that could have been submitted initially.
A motion to reopen is not a “second bite at the apple” to simply include better documentation than was previously submitted. There must be something new, not just something that was previously omitted. Also, there are specific requirements for filing a motion to reopen a case that was denied due to abandonment. If a motion to reopen meets the requirements, the underlying case would be returned to pending status. The USCIS then may review all the evidence and either approve or deny the case.
Time Constraints for Filing Appeal / Motion
Under current procedures, an appeal or a motion should be filed no more than 30 days after the date of the denial decision. If the denial decision was mailed to the applicant or the petitioner, there are three additional days added to filing deadline. There is also a rule allowing for a “rollover” of the due date to the next business day if the deadline falls on a weekend or a federal holiday. However, it is best to be careful about deadlines to avoid filing at the last minute. It is important to double check instructions and current procedures to avoid missing any deadline.
In appeals cases, it is possible to file the notice of appeal within the 30 (or 33) -day deadline, and request additional time to file a supporting legal brief. The brief, with all appropriate supporting documents, should be filed within 30 days after the signature date on the notice of appeal.
Options When Deadline is Passed
It is never a good idea to ignore a deadline. In most cases, a missed deadline will nullify the option of filing the appeal or motion. A motion to reconsider the decision will not be accepted if it is filed late. If an appeal to the AAO is filed late, however, it will be treated as a motion to reconsider or as a motion to reopen, if it otherwise meets the requirements for those filings. A motion to reopen filed late with the USCIS must meet certain additional requirements, such as a showing that the delay was reasonable and beyond the control of the moving party (person filing the motion).
Person with Standing Allowed to File Appeal / Motion
It is necessary to have legal standing in order to contest a USCIS decision. Generally, therefore, only the person or entity (whether individual or employer) filing the application or petition in question can challenge the decision by filing the appeal or motion. Appeals and motions can be filed through the attorney representing the individual or company.
USCIS Does Not Issue Processing Times with Appeals / Motions
As of this writing, the USCIS does not have any set processing times for motions, which vary greatly, with some cases reaching resolution within short periods and others taking many months or years. Processing times for appeals filed with the AAO and the BIA typically are long. In most cases, AAO and BIA appeals take more than a year. Motions and appeals can be expedited, but only if the situation satisfies the restrictive general criteria of the USCIS for expedited treatment. Expedite criteria of the USCIS has been covered in earlier NewsBriefs, available on MurthyDotCom.
Factors to Consider Before Filing Appeal / Motion
There are many factors to consider following a case denial. If the unfavorable decision resulted in termination or denial of nonimmigrant or immigrant status, this may be key in determining the best option to challenge the decision by filing a motion or an appeal. The act of filing, however, does not bestow any status protection benefits on the foreign national. This issue is discussed in our NewsBrief, Motions Do Not Always Provide Protection (11.Dec.2009). If the underlying case is reopened and approved, the gap in status is cured. If, however, the original decision is upheld, the date on which one’s failure to maintain status began remains unchanged, as of the date of the original denial or revocation decision. This is an important factor, therefore, when deciding whether to challenge a denial or consider other potential options.
At the Murthy Law Firm, we regularly assist individuals and employers seeking assistance when they experience a denial or a revocation of a previously-approved case. All available options must be weighed, and sometimes a multi-pronged approach is best in trying to find a resolution. Murthy Law Firm attorneys are experienced and available to help both employers and individuals by discussing options and filing appeals or motions, if and when there are unfortunate unfavorable decisions from the USCIS.
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