According to the USCIS, an appellant, after a denial by an Administrative Appeals Office (AAO), can:
- File a motion to reopen a proceeding (such as an I-485 application)
- File a motion for reconsideration
- File a combined motion for both reopening and reconsideration
The AAO can “also reopen a proceeding or reconsider one of its prior decisions on its own motion”
These motions ask the same authority that made the original decision (denial) to review the application again. This means the USCIS has jurisdiction over its decisions and the AAO has jurisdiction over its decisions.
The difference between a motion to reopen versus a motion to reconsider is:
- A motion to reopen is based on new facts – based on new documentary evidence. It’s not sufficient to submit or reassert previously submitted evidence or previously submitted facts.
- A motion to reconsider is based on “a claim of incorrect application of law or policy to the prior decision.” Here, the AAO will not consider new evidence or facts. The review is based on a legal or policy error. The request should be supported by “a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy.”
When motions to reopen and reconsider are combined, the AAO will review each motion independently. It can grant both motions. It can also grant one motion and deny the other motion. The AA may also deny both motions.
Motions to reopen or reconsider rejection of an appeal will be denied.
Only people/entities with legal standing may file either or both motions (to reopen/reconsider). “In general, the beneficiary of a petition is not a party to the proceeding and does not have the standing to file a motion.” Normally, the sponsor is the person who does have standing.
Form I-290 B is the proper form for requesting a motion to reopen/reconsider or both. The form must be filed within 30 days of an unfavorable decision (33 days if the decision is mailed). The AOO may excuse time failures if the appellant can show the delay was reasonable and uncontrollable. The motion should not be filed with the AAO. Rather the “correct filing address for a motion is listed at www.uscis.gov/i-290b-addresses.”
The required fee must be paid unless there is a fee waiver request. The fee for a combined motion is the same as for a singular motion. Fees “may” be waived in some cases – if the appellant can show an inability to pay the fee.
“All motions must be accompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or a result of the proceeding.”
There is no requirement to file a legal brief. If the appellant (with help of legal counsel) does file a legal brief – the brief should be filed with the motion.
“Unless USCIS directs otherwise, the filing of a motion to reopen or reconsider (or the filing of a subsequent application or petition) does not delay the execution of any decision in a case or extend a previously set departure date.”
Appellants can request that the motion be expedited. Generally, there is no oral argument – but the AAO may consider a written request for one – where the case does involve a particularly significant issue.
Before entering its decision, the AAO may issue an RFE or NOID.
Contact an experienced immigration lawyer to discuss what motion to file if your I-485 application or any immigration application is denied.