If your US immigration application has been denied, after the initial disappointment, you may want to consider your options and possible next steps.

Under US immigration rules, you may be able to file an appeal or a motion to challenge an unfavorable decision.

Immigration appeals are requests to a higher authority to review and potentially overturn an initial immigration decision. Alternatively, motions can be filed to reopen or reconsider a case based on new facts or errors in the original decision.

In this guide, we will consider the rules on challenging immigration decisions, including the requirements and processes to file an appeal or a motion.

This is a highly complex area of US immigration law, with the prospects of success based largely on legal argument and understanding immigration agencies’ policies, protocols and precedents. At NNU Immigration, we provide specialist guidance on immigration appeals and motions, to help those those considering their options following a refused application.

 

Section A: Overview of US Immigration Appeals & Motions

 

Under the US immigration system, there are different ways to challenge an unfavorable immigration decision.

When an application for immigration benefits, such as a visa, green card, or asylum, is denied by the United States Citizenship and Immigration Services (USCIS) or another immigration body, the applicant may have the right to appeal the decision. An immigration appeal is a formal request to a higher authority to review and potentially change a decision made by an initial immigration authority.

Depending on the type of application and the grounds for denial, the appeal could be directed to a different department within the same administrative agency, another administrative agency, or a higher court.

The appeal process can result in one of three outcomes: the original decision may be reversed and vacated, modified, or upheld.

In other circumstances, the applicant may file a motion to reconsider or a motion to reopen. A motion to reconsider is a request to the same body that issued the original decision, asking it to review the decision based on a claim that it was incorrect due to a legal or factual error, while a motion to reopen is a request to the original decision-making body to review the decision based on new evidence or changes in circumstances that were not available at the time of the original decision.

 

Section B: Immigration Appeals

 

Not all US immigration decisions can be appealed. Only the following can be challenged through the appeals process:

 

a. Family-based Visa Petitions (Form I-130): These can be appealed to the Board of Immigration Appeals (BIA) if denied.

b. Employment-based Visa Petitions (Form I-140): These can be appealed to the Administrative Appeals Office (AAO).

c. Adjustment of Status Applications (Form I-485): Denials of adjustment of status can sometimes be appealed to the AAO, especially if they are based on underlying visa petitions.

d. Waivers of Inadmissibility: Certain denials of waivers of inadmissibility (such as Form I-601) can be appealed to the AAO.

e. Applications for Asylum, Withholding of Removal, and Protection under the Convention Against Torture: Decisions made by immigration judges in these cases can be appealed to the BIA.

 

There are also certain types of decisions that cannot be appealed:

 

a. Discretionary Decisions: Some decisions, particularly those involving discretionary relief, are not subject to appeal. This includes certain discretionary decisions by immigration judges and USCIS officers.

b. Decisions on Non-immigrant Visa Applications: Decisions made by US consulates abroad on non-immigrant visa applications (such as tourist or student visas) are generally not appealable. However, applicants can reapply or request a review.

c. Certain USCIS Decisions: Some decisions made by USCIS, such as denials of Temporary Protected Status (TPS) or certain forms of humanitarian relief, may not be appealable. Instead, applicants may be able to file a motion to reopen or reconsider the decision.

 

If an appeal is not an option, applicants can often file a motion to reopen or reconsider the decision. A motion to reopen involves new facts or evidence, while a motion to reconsider is based on claims of legal or factual errors in the original decision.

In some cases, particularly those involving removal orders, applicants may seek judicial review in federal court after exhausting all administrative remedies.

For certain non-appealable decisions, reapplying for the immigration benefit with new or additional information can be a viable alternative.

Our US immigration attorneys can advise you on the options that are open to you in your specific circumstances.

 

1. Types of US Immigration Appeal

 

When an immigration application is denied, applicants have the option to appeal the decision through different channels depending on the nature of their case. Under current US rules, there are five main types of immigration appeal:

 

a. Appeals before the AAO

b. Appeals before the BIA

c. Criminal alien appeals

d. Habeas corpus, Mandamus and APA actions

e. Petitions for Review to US Courts of Appeals

 

a. Appeals before the AAO

Appeals before the Administrative Appeals Office (AAO) involve the review of certain US Citizenship and Immigration Services (USCIS) decisions. The AAO handles appeals for a variety of immigration benefits, including employment-based visa petitions, adjustment of status applications, and waivers of inadmissibility. To initiate an appeal, the appellant must file Form I-290B, Notice of Appeal or Motion, within 30 days of the decision. The AAO conducts a thorough review of the case file, including the appellant’s brief and any additional evidence. During this process, the AAO may request further documentation or schedule an interview if necessary. The AAO can affirm the original USCIS decision, reverse it, or remand the case back to the original adjudicating office for further action. AAO decisions can be precedent-setting, providing guidance for future similar cases. It’s essential to present strong legal arguments and relevant evidence to enhance the chances of a favorable outcome.

 

b. Appeals before the BIA

Appeals before the Board of Immigration Appeals (BIA) involve reviewing decisions made by immigration judges and certain decisions made by the Department of Homeland Security (DHS). The BIA is the highest administrative body for interpreting and applying immigration laws. It handles appeals on removal orders, asylum applications, and family visa petitions, among others. To file an appeal with the BIA, the appellant must submit Form EOIR-26 within 30 days of the immigration judge’s decision. The BIA reviews the written records of the immigration court proceedings, the appellant’s brief, and any supporting documentation. Unlike AAO appeals, the BIA typically does not conduct new hearings but may hold oral arguments in some cases. The BIA can dismiss the appeal, remand the case for further proceedings, or overturn the original decision. BIA decisions are binding on immigration judges and DHS officers unless overturned by the Attorney General or a federal court.

 

c. Criminal Alien Appeals

Criminal alien appeals involve the review of decisions regarding non-citizens who have been convicted of crimes and face removal from the United States. These appeals often deal with complex legal issues related to the intersection of immigration and criminal law, such as the interpretation of aggravated felonies, crimes involving moral turpitude, and eligibility for relief from removal. Criminal aliens can appeal their removal orders to the Board of Immigration Appeals (BIA) and may argue that their convictions do not meet the statutory definitions that mandate removal or that they qualify for relief such as asylum or cancellation of removal. These cases often require detailed legal briefs that address both immigration and criminal law, and they may involve constitutional arguments related to due process. Given the severe consequences of removal, legal representation is crucial in navigating these complex appeals.

 

d. Habeas Corpus, Mandamus, and APA Actions

Habeas Corpus, Mandamus, and Administrative Procedure Act (APA) actions are legal remedies available in federal courts to challenge immigration decisions and detentions. Habeas Corpus petitions allow non-citizens to challenge unlawful detention by the government, arguing that their detention violates constitutional or statutory rights.

Mandamus actions compel government officials to perform a duty owed to the petitioner, often used to expedite delayed immigration decisions. APA actions challenge the legality of administrative actions or inactions, arguing that the decision was arbitrary, capricious, or not in accordance with the law. These remedies provide critical checks on executive power, ensuring that immigration authorities act within the bounds of the law. They often require sophisticated legal arguments and are typically pursued when other administrative remedies, such as appeals to the BIA or AAO, have been exhausted or are inadequate.

 

e. Petitions for Review to US Courts of Appeals

Petitions for Review to US Courts of Appeals involve challenging final orders of removal or other adverse decisions made by the Board of Immigration Appeals (BIA) in the federal appellate courts. These petitions argue that the BIA’s decision was legally incorrect, based on an improper interpretation of the law, or that it violated constitutional rights. Filing a petition for review is a critical step for non-citizens seeking judicial oversight of immigration decisions.

The process involves submitting a detailed legal brief to the appropriate US Court of Appeals, outlining the errors in the BIA’s decision. The court may grant relief, remand the case for further proceedings, or deny the petition. This judicial review is essential for ensuring that immigration laws are applied fairly and correctly, providing a crucial check on administrative actions. Legal representation is highly recommended to navigate the complexities of these appeals.

 

2. US Immigration Appeal Bodies

 

In immigration cases, administrative decisions are usually appealed to a higher administrative authority. The two primary administrative appellate bodies in the US immigration system are the Board of Immigration Appeals (BIA) and the Administrative Appeals Office (AAO), formerly known as the Administrative Appeals Unit (AAU).

 

a. Board of Immigration Appeals (BIA)

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. It is part of the Executive Office for Immigration Review (EOIR) under the Department of Justice.

The BIA has the authority to review decisions made by immigration judges and some decisions made by the Department of Homeland Security (DHS). This also includes appeals of decisions made by immigration courts nationwide, including direct and interlocutory appeals, attorney disciplinary actions, and family visa petitions (commonly known as I-130 petitions).

To file an appeal with the BIA, an appellant must file a Notice of Appeal to the Board of Immigration Appeals (Form EOIR-26) within 30 days of the decision. This form requires a brief statement outlining the grounds for the appeal. Timely and accurate submission of this form is essential to ensure that the appeal is considered.

The BIA’s review process involves a thorough examination of the written records from the immigration court proceedings, along with the arguments presented in the appeal. Unlike many appellate bodies, the BIA does not typically conduct new hearings; however, it may hold hearings in exceptional cases where additional oral arguments are deemed necessary. The focus is primarily on whether the law was applied correctly in the initial decision.

Once the review is complete, the BIA has several options for its decision. It can dismiss the appeal, which upholds the original decision; remand the case back to the immigration judge for further proceedings, often with specific instructions; or overturn the original decision, effectively granting the relief sought by the appellant. Decisions made by the BIA are binding on immigration judges and DHS officers, unless they are overturned by the Attorney General or a federal court, ensuring a uniform application of immigration laws.

 

b. Administrative Appeals Office (AAO)

The Administrative Appeals Office (AAO) is responsible for adjudicating appeals of decisions made by the US Citizenship and Immigration Services (USCIS), which is the agency that processes immigration benefits across the country.

To file an appeal with the AAO, an appellant must file a Notice of Appeal or Motion (Form I-290B) within 30 days of the original decision. This form should include a detailed explanation outlining why the decision should be reconsidered or reversed. Accurate and timely submission of this form is critical to ensure the appeal is reviewed.

The AAO’s review process involves a comprehensive examination of the case file, including the appellant’s brief and any additional evidence submitted. During this review, the AAO may request further documentation to clarify aspects of the case or may schedule an interview if necessary. This thorough process ensures that all relevant information is considered before a decision is made.

After completing the review, the AAO can either affirm the original USCIS decision, reverse it, or remand the case back to the original adjudicating office for further action. Decisions made by the AAO can set precedents, providing guidance for future cases and ensuring that similar cases are handled consistently. These decisions are binding on USCIS officers, reinforcing uniformity in the application of immigration laws and policies.

 

3. Timeframe for Filing an Appeal

 

The timeframe for filing an appeal varies depending on the type of case and the appeals body. Generally, an appeal must be filed within 30 days of receiving the denial decision. It is crucial to adhere to this deadline, as late filings are typically not accepted and can result in losing the right to appeal.

 

Section C: Grounds to Appeal

 

Appealing a US immigration decision involves demonstrating that the original decision was flawed due to specific, legally acceptable reasons.

The grounds for appealing can vary depending on the type of immigration decision and the body reviewing the appeal. Some of the most common and acceptable grounds for appealing an immigration decision include:

 

1. Legal Errors

 

a. Misapplication of Law: The decision-maker incorrectly applied immigration laws or policies. This might include misinterpreting statutes, regulations, or case law.

b. Procedural Errors: There were violations of procedural due process, such as not following the correct procedures, failing to provide adequate notice, or not allowing the applicant a fair opportunity to present their case.

 

2. Factual Errors

 

a. Incorrect Facts: The decision was based on incorrect or incomplete facts. This could include errors in interpreting the evidence or failing to consider relevant facts presented by the applicant.

b. Insufficient Evidence: The decision did not properly consider the evidence provided, or there was a lack of evidence supporting the decision.

 

3. Abuse of Discretion

 

a. Unreasonable Decision: The decision-maker acted outside the bounds of reasonable judgment. This might involve arbitrary or capricious decisions that do not align with the established facts or legal standards.

 

4. New Evidence or Changed Circumstances

 

a. New Evidence: Evidence that was not available at the time of the original decision has come to light and could significantly impact the outcome of the case.

b. Changed Circumstances: There have been significant changes in the applicant’s situation or in the circumstances that were the basis of the original decision.

 

5. Constitutional Violations

 

a. Due Process Violations: The applicant’s constitutional rights to due process were violated during the adjudication of their case. This could include issues such as not receiving a fair hearing or improper handling of evidence.

b. Equal Protection Violations: The decision was discriminatory and violated the applicant’s right to equal protection under the law.

 

6. Specific Grounds for Different Types of Appeals

 

a. Visa Petition Appeals: Common grounds include errors in determining the eligibility criteria for the visa category, misinterpretation of supporting documents, and procedural mistakes in processing the petition.

b. Adjustment of Status Appeals: Grounds might include incorrect application of eligibility requirements, not considering all relevant evidence and procedural errors in the adjudication process.

c. Waivers of Inadmissibility Appeals: These often involve arguments that the decision-maker did not properly assess the hardship factors or other criteria necessary for the waiver.

d. Asylum and Removal Proceedings Appeals: Grounds include failure to consider credible evidence of persecution, incorrect legal standards applied to asylum eligibility, and procedural errors during the immigration court proceedings.

 

Section D: How to File an Immigration Appeal

 

The appeals process involves several key steps that applicants must follow to challenge a denial effectively. The first step is to file a notice of appeal with the appropriate appeals body, either the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO). This notice formally indicates the applicant’s intention to contest the denial and initiates the appeals process.

Next, the appellant must provide a detailed statement of reasons explaining why they believe the denial was incorrect. This statement should include comprehensive legal arguments, relevant factual evidence, and references to pertinent laws or policies that support the appellant’s position. The clarity and thoroughness of this explanation are crucial for a successful appeal.

During the review process, the appeals body examines the submitted materials along with the original case file. This may involve requesting additional information or scheduling a hearing to gather more details if necessary. The thoroughness of this review ensures that all aspects of the case are considered.

Finally, after completing the review, the appeals body issues a decision. This decision can either uphold the original denial, overturn it, or remand the case back to the original adjudicating body for further action. Each outcome reflects a careful evaluation of the case’s merits and ensures that the decision is fair and just.

 

1. Step-by-Step Guide to Filing an Immigration Appeal

 

Step 1: Gather Necessary Documents

 

The first step in filing an appeal is to collect all relevant documents related to your case. This includes:

 

a. Denial Notice: The official notice of denial from USCIS or the immigration authority.

b. Application File: Copies of all documents submitted with the original application.

c. Supporting Evidence: Any additional evidence that supports your appeal, such as new documents, affidavits, or expert opinions.

d. Legal Arguments: References to immigration laws, regulations, or precedents that support your case.

 

Step 2: Complete Form I-290B

 

Form I-290B, Notice of Appeal or Motion, is used to appeal a USCIS decision. It comprises the following sections:

 

a. Section 1: Information About the Applicant: Provide your personal information, including name, address, and A-Number (if applicable).

b. Section 2: Information About the Appeal or Motion: Indicate whether you are filing an appeal or a motion (Motion to Reopen or Motion to Reconsider).

c. Section 3: Basis for Appeal or Motion: Clearly state the reasons for your appeal. This is where you outline the errors in the original decision and present your legal arguments and evidence.

d. Signature: Ensure the form is signed and dated.

 

Step 3: Submit the Form and Supporting Documents

 

After completing Form I-290B, gather your supporting documents and submit them as a complete package. Arrange your documents in a logical order, starting with Form I-290B followed by your brief or statement of reasons, supporting evidence, and a copy of the denial notice.

Mail your package to the address specified in the denial notice or the instructions for Form I-290B. Ensure you use a reliable mailing method that provides confirmation of delivery.

 

Step 4: Pay the Appeal Fee

 

Filing an appeal requires the payment of a non-refundable fee.

Currently, it costs $675 to file Form I-290B Notice of Appeal or Motion, but it’s advisable to check the USCIS website or the instructions for Form I-290B for the current fee amount at the time you make your application.

Fees can be paid by check, money order, or credit card using Form G-1450 (Authorization for Credit Card Transactions).

You should attach the payment to your appeal package or follow the specific instructions provided for payment processing.

 

2. Supporting Documentation

 

When filing an appeal, the following documentation is typically required:

 

a. Notice of Appeal Form (Form I-290B): This form is used to officially notify the appeals body of the intention to appeal.

b. Filing Fee: A non-refundable fee must be paid when submitting the notice of appeal.

c. Brief or Statement of Reasons: A detailed written statement explaining why the appeal should be granted, including legal arguments and supporting evidence.

d. Supporting Documents: Any additional evidence that supports the arguments made in the brief, such as new evidence, affidavits, or expert testimony.

e. Copy of the Original Denial Notice: The notice of denial received from the USCIS or other immigration body.

 

Additional information and documents are likely to be required to evidence your individual circustances and the facts of the case. Taking professional advice will help ensure you compile and submit the strongest submission to support your appeal.

 

Section E: Motions to Reconsider & Reopen

 

When faced with an unfavorable decision in an immigration case, applicants have options beyond just appealing the decision. Filing a motion can be an effective way to address specific issues within the case.

 

1. What is a Motion?

 

In immigration law, a motion is a formal request submitted to the same body that made the original decision, asking it to review and change that decision. Motions are typically based on new evidence or arguments that were not previously considered. Unlike appeals, which are reviewed by a higher authority, motions are handled by the same adjudicating office or court that issued the original decision.

While both motions and appeals are methods to challenge an immigration decision, they serve different purposes and follow distinct processes.

Motions are filed with the original decision-making body, motions seek to have the same authority re-evaluate the case based on new information or legal arguments. They do not involve a higher authority.

Appeals, however, are filed with a higher authority (such as the BIA or AAO), and involve a review of the original decision by a different body, often focusing on legal errors or misinterpretations of the law.

 

2. Types of Motions

 

There are two main types of motions: Motion to Reopen and Motion to Reconsider.

 

a. Motion to Reopen

A Motion to Reopen is filed when new facts or evidence emerge that were not available at the time of the original decision. This type of motion requests that the case be reopened to consider this new information, which could potentially change the outcome.

The primary purpose of a Motion to Reopen is to present new evidence or facts that were previously unavailable and could significantly impact the case’s result. To successfully file this motion, it must include new, material evidence along with a statement explaining why this evidence was not presented during the initial proceedings.

To file a Motion to Reopen, the applicant must submit Form I-290B, accompanied by the new evidence and a detailed explanation of its relevance and why it was not previously available. This submission needs to be thorough to ensure that the reviewing body understands the importance of the new information.

The timeframe for filing a Motion to Reopen is generally within 90 days of the original decision. However, there are exceptions for certain types of cases or specific circumstances that might extend this deadline. It is crucial to adhere to this timeline to ensure the motion is considered valid.

 

b. Motion to Reconsider

A Motion to Reconsider is based on the argument that the original decision was incorrect due to a misapplication of the law or policy. This type of motion does not introduce new evidence; instead, it requests that the decision-making body review the case again using the existing records.

The primary purpose of a Motion to Reconsider is to argue that the decision was legally incorrect due to errors in the application of law or policy. To support this argument, the motion must include a detailed argument that references specific legal standards, regulations, or precedents that were misapplied or overlooked in the original decision.

To file a Motion to Reconsider, the applicant must submit Form I-290B, along with a brief outlining the legal errors in the original decision. This brief should clearly articulate how the law or policy was incorrectly applied, supported by relevant legal references.

The timeframe for filing a Motion to Reconsider is typically within 30 days of the original decision. However, exceptions may apply in some situations, so it is important to ensure that the motion is filed within the appropriate timeframe to be considered valid.

 

3. Criteria for Motions

 

A Motion to Reopen requires the presentation of new, material evidence that was not available at the time of the original decision. This new evidence must be directly relevant to the issues that led to the denial of the original application. The evidence should provide substantial new information that could potentially alter the outcome of the case if it had been available during the initial adjudication.

A Motion to Reconsider, on the other hand, focuses on demonstrating that the original decision was based on an incorrect application of law or policy. This type of motion does not introduce new evidence; instead, it relies on the existing record and legal arguments. The objective is to show that there were legal errors in how the decision was made, such as misinterpretations of laws or regulations that materially affected the outcome.

 

4. Timeline and Processing Times for Motions

 

For a Motion to Reopen, the general rule is that it must be filed within 90 days of the original decision. However, exceptions may apply for specific case types or under certain circumstances, allowing for extended deadlines. In contrast, a Motion to Reconsider typically must be filed within 30 days of the original decision. Adhering to these deadlines is crucial to ensure the motion is considered valid and processed.

The processing times for motions can vary widely based on the complexity of the case and the workload of the adjudicating office. It often takes several months for a decision to be rendered. During this period, applicants can monitor the status of their motion by checking the USCIS website or by contacting the USCIS Contact Center. These status updates provide applicants with information on the progress of their case and any additional actions that may be required.

 

Section F: Grounds to File a Motion to Reopen or Reconsider

 

Filing a Motion to Reopen or a Motion to Reconsider an immigration decision involves presenting specific, legally acceptable reasons for the request. Each type of motion serves a different purpose and requires distinct grounds for filing.

 

1. Grounds for Filing a Motion to Reopen

 

A Motion to Reopen is filed to present new evidence or changes in circumstances that were not available at the time of the original decision. The acceptable grounds include:

 

a. New Evidence

When an applicant has obtained new, material evidence that was not available or could not have been discovered or presented at the time of the original decision, they may file a motion to reopen the case. This new evidence must be significant and directly impact the outcome of the case, providing a basis for reconsidering the original decision.

Examples of such new evidence include new affidavits that offer additional insights or corroboration, documents that were previously inaccessible or undiscovered, and expert testimony that brings a fresh perspective or new information to the case. This evidence must be compelling enough to potentially alter the decision made in the initial proceedings, demonstrating that the original conclusion may have been reached in error or without complete information.

 

b. Changed Circumstances

Significant changes in the applicant’s personal situation or conditions in their home country can affect their eligibility or the outcome of their case. For instance, new information about deteriorating conditions in the applicant’s home country could strengthen an asylum claim. Changes in family circumstances, such as marriage, divorce, or the birth of a child, can also impact the case.

New job offers or changes in employment status may also influence the eligibility for certain employment-based applications.

 

c. Errors or Omissions

The original decision might have been influenced by errors or omissions in the record that need to be addressed. Such issues could include overlooked evidence that was not considered during the initial decision, clerical errors that affected the outcome, or miscommunications that led to an incomplete understanding of the case.

 

d. New Legal Developments

Changes in law, policy, or precedent that were not available at the time of the original decision can also provide grounds for reopening or reconsidering a case. Recent court rulings, for example, may set new legal standards that favor the applicant’s case. Policy changes at the administrative level can also alter the legal landscape, providing new opportunities for relief or eligibility that were previously unavailable.

 

2. Grounds for Filing a Motion to Reconsider

 

A Motion to Reconsider is filed to argue that the original decision was incorrect based on existing evidence due to a legal or factual error. The acceptable grounds include:

 

Section G: Filing a Motion

 

Filing a motion involves presenting new evidence or addressing legal errors in the original adjudication by following these steps:

 

1. Step-by-Step Guide to Filing a Motion

 

Step 1: Determine the Appropriate Motion

File a motion to reopen if you have new, previously unavailable evidence that could affect the outcome of your case, or a motion to reconsider if you believe the original decision was incorrect due to a legal or factual error.

 

Step 2: Gather Necessary Documentation

Your supporting documents should include the official notice of denial from USCIS or the relevant immigration authority.

For a motion to reopen, collect any new documents, affidavits, or evidence that were not available during the original decision.

For a motion to reconsider, you will need to prepare a detailed argument outlining the legal errors in the original decision, referencing relevant laws, regulations, or precedents.

 

Step 3: Complete the Required Forms

Form I-290B (Notice of Appeal or Motion) is used to file both a Motion to Reopen and a Motion to Reconsider. The form includes:

 

a. Section 1: Provide your personal information, including name, address, and A-Number (if applicable).

b. Section 2: Indicate whether you are filing a Motion to Reopen or a Motion to Reconsider.

c. Section 3: Provide a detailed statement of reasons for your motion, including new evidence or legal arguments.

d. Signature: Ensure the form is signed and dated.

 

Step 4: Prepare and Organize Supporting Documents

Arrange your documents in a logical order, starting with Form I-290B, followed by your brief or statement of reasons, supporting evidence (for motion to reopen), or legal arguments (for motion to reconsider).

Clearly label and index each document to ensure clarity and ease of review by the adjudicating officer.

 

Step 5: Submit the Motion

Submit your completed Form I-290B and supporting documents to the address specified in the denial notice or the form instructions. Use a reliable mailing method that provides confirmation of delivery.

 

Step 6: Pay the Filing Fee

As of the current guidelines, it costs $675 to file form I-290B, but it is advisable to check the USCIS website or the instructions for Form I-290B for the latest fee amount when making your application.

Fees can be paid by check, money order, or credit card using Form G-1450 (Authorization for Credit Card Transactions).

Attach the payment to your motion package or follow the specific instructions provided for payment processing.

 

2. Supporting Documents

 

When filing a motion, the following documentation is typically required:

 

a. Form I-290B: The primary form used to file a motion.

b. Supporting Evidence: New documents for a Motion to Reopen or legal arguments for a Motion to Reconsider.

c. Filing Fee: Payment for the motion processing fee.

d. Denial Notice: Copy of the original denial notice.

e. Additional Forms (if applicable): Form G-1450 for credit card payments.

 

Additional information and documents are likely to be required to evidence your individual circumstances and the facts of the case. Taking professional advice will help ensure you compile and submit the strongest submission to support your motion.

 

Section H: Factors That Influence Success

 

Successfully challenging an immigration decision through appeals or motions involves a strategic approach that considers various influential factors.

 

1. Common Reasons for Successful Appeals and Motions

 

Several key reasons contribute to the success of appeals and motions:

 

a. New and Compelling Evidence: Presenting new evidence that was not available at the time of the original decision is a strong basis for reopening a case. This evidence must be material and relevant to the grounds for denial.

b. Procedural Errors: Identifying and proving errors in the initial adjudication process, such as misinterpretation of the facts, incorrect application of the law, or failure to consider critical evidence, can lead to a successful motion to reconsider.

c. Changed Circumstances: Demonstrating significant changes in personal circumstances or in the situation that originally led to the denial can provide grounds for a successful appeal or motion to reopen.

d. Effective Legal Representation: Having an experienced immigration attorney can greatly increase the likelihood of success due to their expertise in crafting compelling legal arguments and navigating the complexities of the appeals process.

 

2. Importance of New Evidence or Changes in Circumstances

 

New evidence or significant changes in circumstances are important factors in the success of motions and appeals.

For a Motion to Reopen, presenting new, previously unavailable evidence is essential. This evidence should directly address the reasons for the original denial and provide a strong argument for why the decision should be reconsidered.

Life changes, such as new employment, marriage, birth of a child, or changes in the applicant’s home country conditions, can significantly impact the case. These changes must be clearly documented and relevant to the issues at hand.

 

3. Role of Legal Arguments and Precedents

 

Strong legal arguments and the use of precedents also play a vital role in the success of appeals and motions. Well-crafted legal arguments that clearly explain how the original decision was legally flawed are crucial for a Motion to Reconsider. These arguments should reference specific laws, regulations, and policies that support the applicant’s position.

Citing relevant precedents—past decisions in similar cases—can strengthen an appeal or motion by showing that similar situations have been resolved favorably. Precedents provide a legal framework that supports the argument for overturning the original decision.

 

Section I: Summary

 

Filing an appeal or motion requires careful preparation and a thorough understanding of the legal process.

With thorough preparation and, ideally, the guidance of experienced legal representation, applicants can approach the process with greater confidence and significantly improve their chances of achieving a favorable outcome.

At NNU Immigration, we can help you avoid the potential for further delay in securing a successful outcome. Our team of US immigration attorneys are specialists in US immigration applications, including appeals and motions to challenge decisions. We can undertake an assessment of your case, including a review of your denial notice and original application to determine the best option for you, and then manage the process to compile and file your appeal or motion. For expert guidance, contact us.

 

Section J: Immigration Appeal FAQs

 

What is an immigration appeal?
An immigration appeal is a formal request to a higher authority to review and potentially overturn a decision made by a lower immigration authority, such as the denial of a visa or green card application.

 

What is the difference between an appeal and a motion?
An appeal is reviewed by a higher authority, such as the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO), while a motion is filed with the same body that made the original decision. Motions seek to reopen or reconsider the original decision based on new evidence or legal errors.

 

What are the common reasons for filing a Motion to Reopen?
A Motion to Reopen is typically filed when there is new, previously unavailable evidence that could affect the outcome of the case. This evidence must be relevant and material to the grounds for the original denial.

 

What are the common reasons for filing a Motion to Reconsider?
A Motion to Reconsider is filed when the original decision is believed to be legally incorrect due to errors in the application of law or policy. This motion does not introduce new evidence but relies on the existing record.

 

How long do I have to file an appeal or motion after my immigration application is denied?
The timeframe for filing an appeal is generally within 30 days of the denial decision. For motions, a Motion to Reopen typically must be filed within 90 days, and a Motion to Reconsider within 30 days of the decision. Specific deadlines may vary based on the case type and circumstances.

 

What documentation is required to file an appeal or motion?
Required documentation typically includes the denial notice, completed Form I-290B (Notice of Appeal or Motion), supporting evidence for a Motion to Reopen, legal arguments for a Motion to Reconsider, and the appropriate filing fee.

 

How much does it cost to file an appeal or motion?
The filing fee for Form I-290B is currently $675 but you should check the latest fee on the USCIS website or the form instructions when making your application.

 

What factors can influence the success of an appeal or motion?
Success factors include presenting new and compelling evidence, identifying procedural errors in the original decision, demonstrating significant changes in circumstances, and crafting strong legal arguments supported by relevant precedents.

 

Where can I check the status of my appeal or motion?
You can check the status of your appeal or motion on the USCIS website using your receipt number, or by contacting the USCIS Contact Center. It’s also possible to get updates through your attorney if you have legal representation.

 

What should I do if my appeal or motion is denied?
If your appeal or motion is denied, you may have other legal options, such as filing another motion, seeking judicial review, or exploring alternative immigration pathways. We can help determine the best course of action based on your specific situation.

 

Section K: Glossary

 

Administrative Appeals Office (AAO): A division of USCIS that reviews appeals of certain immigration decisions made by USCIS officers.

Appeal: A formal request to a higher authority to review and change a decision made by a lower authority.

Board of Immigration Appeals (BIA): The highest administrative body for interpreting and applying immigration laws, part of the Executive Office for Immigration Review (EOIR).

Denial Notice: An official notification from USCIS or another immigration authority indicating that an application has been denied.

Form I-290B: The form used to file an appeal or motion to reopen or reconsider a decision made by USCIS.

Immigration Appeal: A request for a higher authority, such as the BIA or AAO, to review and overturn a decision made by a lower immigration authority.

Motion: A formal request to the same body that made the original decision, asking it to review and change that decision based on new evidence or legal errors.

Motion to Reconsider: A motion filed when the original decision is believed to be legally incorrect due to errors in the application of law or policy, without introducing new evidence.

Motion to Reopen: A motion filed to present new, previously unavailable evidence that could affect the outcome of the case.

Notice of Appeal: A formal declaration of the intention to appeal a decision, typically submitted using a specific form (e.g., Form I-290B).

Precedents: Past decisions in similar cases that serve as a reference for determining the outcome of current cases.

Reopening a Case: The process of reconsidering a decision based on new evidence or changes in circumstances, typically through a Motion to Reopen.

Reconsidering a Case: The process of reviewing a decision based on claims of legal or factual errors, typically through a Motion to Reconsider.

USCIS (United States Citizenship and Immigration Services): The government agency responsible for overseeing lawful immigration to the United States, including the processing of immigration applications and petitions.

 

Section L: Additional Resources

 

USCIS Official Website
https://www.USCIS.gov
Access forms, instructions, and detailed information on immigration processes, including appeals and motions.

 

American Immigration Lawyers Association (AILA)
https://www.AILA.org
Find a qualified immigration attorney and access resources for legal assistance.

 

Immigrant Legal Resource Center (ILRC)
https://www.ILRC.org

 

Catholic Legal Immigration Network, Inc. (CLINIC)
https://www.cliniclegal.org