Motions to Reopen / Reconsider and Appeal13 Jan 2021
In some cases, it is possible to challenge a denial decision made by the U.S. Citizenship and Immigration Services (USCIS) on an application or petition for an immigration benefit. This challenge is made either through the filing of a motion to reopen or reconsider (motion, or MTR) with the USCIS, or an appeal to the Administrative Appeals Office (AAO). The procedures governing the filing and processing of MTRs and appeals are complex, and important issues such as timing generally must be carefully considered before proceeding with such a filing.
Background Information on MTRs
If the USCIS issues a denial, the applicant / petitioner usually has the option of filing an MTR to challenge that decision. Once filed, the USCIS office that issued the denial is also responsible for making a decision on the motion. The motion can request that the original denial be reopened and/or reconsidered. If the decision is reopened, the underlying case is returned to pending status and the USCIS issues a second decision on the case. If the USCIS favorably reconsiders, this results in an approval of the case that was previously denied.
A motion to reopen requires that the applicant provide new facts that are supported by affidavits or other new evidence. A motion to reconsider, on the other hand, must state how the USCIS decision was incorrect, based upon the evidence previously provided, and it must include sufficient legal basis for the requested reconsideration.
Background Information on Appeals
Although decisions made by the USCIS on many types of cases may be appealed to the AAO, denials issued for certain types of cases that involve discretionary decisions may not be challenged in that manner, such as on applications to adjust status (I-485s). Additionally, certain family-based petitions are appealed to a different appeals body, the Board of Immigration Appeals (BIA). Procedurally, cases appealed to the AAO are first sent to the USCIS office that issued the denial decision. The USCIS then reviews the appeal filing and, if persuaded to do so, may decide to treat the appeal as a motion and issue an approval decision. If the USCIS does not choose to treat the case as a motion, it forwards the matter to the AAO for an independent review and decision.
Timeframe to Process Motions
The USCIS does not publish specific processing timeframes for motions. The agency has indicated that its goal is to process motions within three months. However, many cases take significantly longer for the USCIS to process.
AAO Processing Times
The goal of the AAO is to process appeals within 180 days. However, according to the latest AAO processing times, this 180-day goal usually is not met.
Processing Delays Beneficial in Some Situations
While a faster appeals process generally is best for all parties involved, there are situations in which a long adjudication process can be beneficial for the applicant/s, and may factor into the development of legal strategies. For instance, if an I-140 petition is on appeal to the AAO, it may still be used to extend the beneficiary’s H1B status beyond the six-year limit. It also may serve to preserve the age of a beneficiary child under the Child Status Protection Act, if the I-140 ultimately is approved.
The filing and processing rules for motions and appeals are complex and require a thorough understanding in order to decide on the proper course of action after a denial has been issued on a petition or application. It also is necessary to understand current trends and developments related to key matters, including the important issue of processing timeframes. It is advisable, therefore, to consult with an attorney knowledgeable in immigration law, who can devise a specific strategy and follow the case through to the end of the process. Attorneys at the Murthy Law Firm have extensive experience in the practice on appeals and motions and are available to explore these options with those who need help to achieve their overall immigration objectives.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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