H-1B petitions can sometimes be denied unjustly, in which case filing for a motion to reopen will be right. The USCIS can deny the petitions for a number of reasons, including failure to submit all the required documents.
Many companies sponsoring H-1B beneficiaries have experienced unfair denials. The USCIS has reversed its stance, and applicants can now reopen their cases, but it will be at its discretion.
Filing a Motion to Reopen or Reconsider Denied H1B Petitions in USCIS Administrative Appeals Office
H-1B petitioners may request that the USCIS reconsider or reopen the denial based on the three rescinded policy memos. A petitioner will be required to fill form 1-290B, Notice of Appeal or Motion, and pay the required fee where there is no fee waiver.
The filing fee in one district may not be the same with the filing fee in another. As such, it is important to confirm the appropriate fee and attach proof of payment with the written letter submitted.
However, the decision to accept and reconsider is still subject to the USCIS’s discretion after going through the properly filed motion.
This will be done under certain circumstances as permitted by regulation and indicated in the appropriate form instructions.
The USCIS will process the motions based on filing orders and consistency with current policy guidance.
The system reminds the visa petitioner that petitions filed for reconsideration or reopening will remain subject to all relevant and remaining eligibility requirements after a sufficient explanation is made.
Petitioners who were denied H-1B petitions based on the rescinded policies are required to consider certain things. That includes if there’s time remaining in the validity period requested on the relevant condition application and previously-filed petition.
Who Can File Immigration Appeals or Motion to Reopen a Denied or Revoked H1B Petition
Only the petitioner is liable to file an appeal or motion of a revoked or denied H-1B visa petition. You cannot file as a beneficiary unless you are both the petitioner and beneficiary of a US citizen or otherwise authorized to file the petition.
However, you may file an appeal or motion in a revocation proceeding if you’re the beneficiary of Form 1-140.
Someone who meets the following requirements can file an appeal or motion:
- Such had an approved Form 1-140 that the USCIS revoked,
- You have a Form 1-485 that has been pending for at least six months, which you filed based on a valid Form 1-140,
- You submitted a portability request or Form 1-485 Supplement J through an acceptable form of communication,
- The USCIS approved the portability request.
How Do You File an Appeal After a Previously Set Departure Date?
The petitioner who is either the principal applicant or one with an interest in the underlying petition is mostly required to file an appeal using Form 1-290B, Notice of Appeal or Motion. The exceptions to that include the following:
- Form 1-694 for appeals of legalized applications, decisions of special immigrant employees, and termination of legal temporary resident status,
- Form N-336 for appeals of decisions on an N-400 Applications for Naturalization, and
- Form EOIR-29 for appeals of decisions on a 1-130, Alien Relative Petition or other decisions appealed to the BIA.
You will generally receive information on which form you should use to appeal when you are notified of an appealing unfavorable decision.
If it is a newly filed asylum application to appeal a request that the asylum office denies, you will be guided on how to go about it and the asylum office director to meet.
How Does a Motion to Reopen and Motion to Reconsider Differ?
Knowing the appropriate form, and information is key to your motion to reopen after an H-1B denial. You should also know whether to file a combined motion or a single motion to a different officer or the same officer.
Motions to reopen are requests sent to the office that passed the unfavorable decision to review its decision with new evidence alongside the required initial evidence.
The motion should state new or additional evidence with supporting affidavits, other documentary evidence, or any requested evidence.
New or additional evidence means facts you hadn’t submitted before; it must be relevant to the issues raised on the motion.
Motions to reconsider are requests sent to the office that denied the H-1B petition to review its decision based on an unjust or incorrect law or policy application.
This motion should establish that the decision was wrong and should be supported by citations to regulations or precedent decisions.
The proof of record at the decision time must establish that it was based on an incorrect application of policy or law. Motions to reconsider don’t require new facts or evidence, unlike motions to reopen.
What Happens When You File an Appeal to the AAO?
When you file an appeal to the AAO, the USCIS office that originally denied or revoked the -1B petition will first review it.
The review will be to determine whether to take favorable action or not. In cases where there is a shorter appeal period, the petitioner will have to provide sufficient evidence why homeland security has to consider their claims.
In this period, the reviewing office may treat the appeal as a motion to reconsider or a motion to reopen and approve the H-1B petition.
Otherwise, it will forward the appeal, any other DHS form, and related proceedings recorded to the AAO for a new decision to be issued.
You generally have to file the appeal within thirty days from the decision date. Appeals may get a fifteen-day deadline on special occasions.
The deadline has no extension, but an extra three days is added when your decision has been mailed to you.
Meanwhile, filing an appeal for H-1B denial to be reopened does not extend a previously set departure date or delay any decision from going into effect.
Are You Required to Submit a Brief with an Appeal?
You don’t need to submit a brief with an appeal unless you choose to. Alternatively, you can submit the brief directly to the AAO within thirty days after filing the appeal.
However, you are required to specifically identify any unjust or erroneous conclusion of law in the unfavorable denial decision when making an AAO appeal.
Your appeal may be dismissed if you don’t provide sufficient proof and explanation of why you believe the initial denial decision was in error.
You are not expected to file a motion alone with a service request; instead, you should state in detail what the motion seeks to achieve with the reopened proceedings.
Timeline for Adjudication of Decision and Motions
The AAO often completes its appellate review within six months or 180 days from when it receives the request. The six months start counting after the initial field review by the USCIS office.
However, some cases take longer than 180 days for certain reasons beyond the AAO’s control. For example, it may take longer if additional documentation is needed to complete the file.
Meanwhile, USCIS field offices and service centers often adjudicate motions within three months (90 days), but some cases take longer.
The decision on an appeal previously submitted may also take longer if the case becomes more complex or requires additional review of the earlier decision.
Most appeals, especially when there is an underlying application, last for a longer time when it is dealing with an adverse decision, and certain exceptions to the asylum applications have to be considered.
However, when a denial is incorrect based on clear evidence, it doesn’t take long before such is overturned, including when it is an asylum decision to reopen filed cases.
Can You File a Lawsuit in a Federal Court to Overturn H1B Denial?
You can go through federal litigation and judicial review to overturn the decision on your H-1B petition provided you are within your appeal rights.
However, there are certain things to consider, including whether the federal court has jurisdiction over the matter and the appropriate way to file a final denial notice.
You also need to consider the constitutional and prudential standings, which are prerequisites to federal litigation. In addition, you need to consider the finality of the H-1B petition and the likelihood of success of the lawsuit on the merits.
What Documents Are Needed to Prepare for a Decision Overturned by Federal Court?
First, all preliminary issues must have been resolved to file a lawsuit; the attorney then prepares a complaint.
The complaint may include the minimum amount needed, nature of the suit, jurisdiction basis, decision description, and allegation that the decision is held unlawful.
Otherwise, the complaint can be as detailed as a motion for summary judgment; it should contain relevant documents and be supported by legal authorities.
Also, the relevant parties have to review local rules of the federal district court where the complaint will be filed. The rules will include details of other papers that should be submitted with the complaint and how to submit them.
Many US district courts accept the online filing of any motion arising, and you may come across a different form and allotted period to file motions for each district, while some still want paper filing and online after.
One must also file a civil cover sheet and, probably, file a motion document indicating the other parties with interest in the matter.
Why Not Contact Herman Legal Group to Help You?
In filing a motion to reopen after H-1B denial, a little professional guidance from immigration attorneys can go a long way to help you save your precious time and money.
At Herman Legal Group we can help you navigate the complex process as we have helped a vast majority who have the same prohibitions in over 26 years of experience.
You can seek out counsel from the Herman Legal Group by scheduling a consultation with us to hold on WhatsApp, Zoom, Skype, and Facetime by calling us on +1-216-696-617. You can also schedule a personal consultation with Richard Herman, a veteran immigration attorney by booking online.
Conclusion
You can take different measures to overturn the decision concerning your H-1B petition to the appropriate service center in line with DHS regulations, as shown in this article.
The process isn’t hard as long as you pay careful attention to the rules and submit all required documents. Filing a lawsuit is generally considered the most effective and fast way of resolving H-1B denial decisions in the client’s favor.
