This 30-minute presentation introduces motions to reopen and reconsider for immigration cases, including information on:
- Types of appeals and motions.
- When to file these motions.
- Which administrative body handles each motion type.
- When motions must be filed and by whom.
- And so much more.
Foreign nationals who receive a visa denial from the United States Immigration and Citizenship Services (USCIS) can appeal the decision with either a motion to reopen or reconsider, depending on the circumstances. An individual can file a motion to reconsider if they feel that the judge did not correctly apply the law, submitted facts, or federal immigration policy. If instead, the foreign national has new evidence that they did not submit in the original case, they can file a motion to reopen.
Only a petitioner can file for an appeal. They must file a motion to reconsider within thirty days of receiving the rejection. A motion to reopen can be filed within 90 days.
The administrative bodies involved may include:
- The appellate body that reviews the decision is the Board of Immigration Appeals (BIA).
- The proceedings on unfair immigration related employment are handled by the Office of Chief Administrative Hearing Officer (OCAHO).
- The appellate body that reviews decisions made by the service centers is the Administrative Appeals Office (AAO).
- The office that reviews denials or revocations for permanent labor certifications (PERM) for employment-based green cards is the Board of Alien Labor Certification Appeals Office (BALCA).
It is possible to appeal a BIA decision in federal circuit court if that court has jurisdiction over the case.
Motion to Reopen
A motion to reopen can only be filed when there are new facts supported by affidavits, which are written statements of fact made under oath. The petitioner also must file documentary evidence demonstrating their eligibility at the time they filed the underlying application.
If the application was denied due to abandonment, then a motion to reopen can only be filed if the following is proven:
- Requested evidence was not material.
- The required initial evidence was submitted with the application or petition.
- The request for appearance or additional evidence was complied with during the allotted period.
- The request for evidence or appearance was not sent to the address of record.
Administrative Appeals Office (AAO) Jurisdiction
The AAO conducts an appellate review of immigration benefit requests within its jurisdiction. It reviews forms including:
- Forms I-140 and I-129.
- EB-5 immigrant investor petitions (Form I-526).
- Regional Center applications (Form I-924).
- Temporary Protected Status applications (Form I-821).
- Fiancé(e) petitions (Form I-129F).
- Applications for a waiver of inadmissibility (Form I-601).
- Applications for permission to reapply for admission after removal (Form I-212).
- Special immigrant visa petitions Form I-360, except for Form I-360 widower appeals.
- Orphan petitions (Forms I-600/I-600A and I-800/I-800A).
- T visa applications for victims of human trafficking (Form I-914).
- U visa petitions for victims of criminal activity (Form I-918).
- Related adjustment of status applications (Form I-485).
- Certificates of citizenship (Form N-600) and replacements.
- Preserve residence for naturalization purposes (Form N-470).
- Immigration and Customs Enforcement determinations.
The petitioner must be eligible for the requested immigration benefit at the time of filing and remain eligible through adjudication.
The AAO rarely extends deadlines, so it is important to make sure everything is filed on time. The AAO may request petitioners to submit amicus curiae briefs. These are legal briefs that can bring new relevant facts to the agency’s attention and help it review complex or unusual issues of law or policy.
Receiving a Response from the AAO
The estimated timeline for receiving a result is one hundred and eighty days, however it normally takes longer. The five possible outcomes for an AAO appeal are:
- Sustain: AAO sustains the appeal and orders the approval of the application or petition. This is the most favorable option.
- Dismissal: This happens when an appellant fails to establish eligibility for the requested immigration benefit, when the appeal is moot, or when the appellant withdraws the appeal or fails to respond to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) by the required date. A motion to reopen or reconsider can be filed in this case.
- Summary Dismissal: This response occurs when the appeal does not specifically identify any legal or factual error in the original decision.
- Reject: Appeals get rejected if they are improperly filed.
- Remand: The decision is sent to the office that made the unfavorable decision to take further action and enter a new decision.
Individuals may file a second petition on the same issue while the case is being appealed with the AAO. However, the Department of Homeland Security (DHS) will hold the second petition in abeyance, or temporarily suspend it, until the appeal is decided.
For more information on appealing an immigration decision, or other case-specific questions, please contact your trusted Chugh, LLP attorney.