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Should I File a Motion to Reopen or a Motion to Reconsider With the USCIS AAO?

US Citizenship and Immigration Services

If an application or petition is denied by an immigration official at the US Citizenship and Immigration Services ("USCIS"), you have the option to appeal the adverse decision. There are several levels of appeal, with the first level being a request for review from the USCIS Administrative Appeals Office ("AAO"). The AAO is internal to the USCIS and conducts an administrative appellate review of USCIS officers’ decisions regarding immigration benefits. For general discussion, see here.

If you obtain a decision that you do not agree with, certain USCIS decision can be appealed to the AAO. Legally and technically, these are not "appeals" but rather efforts to get a "better" decision from the AAO. These two methods are:

  • Filing a written request -- a "motion" -- to reopen a proceeding or
  • Filing a motion for reconsideration

Note that these can be combined in a signal motion. As can be seen, filing an appeal with the AAO is complicated, and trying to get a "better" decision from the AAO is even more complicated. You will need the best immigration attorney to help. If you need help with your immigration-related legal matters, contact Yekrangi & Associates. We are top-tier immigration attorneys. Contact us at (949) 478-4963 to schedule a consultation.

As discussed more fully here, the basic difference between a motion to reopen and a motion for reconsideration is:

A motion to reopen must provide new FACTS OR EVIDENCE -- that is, a motion to reopen "... must state new facts and be supported by documentary evidence. Resubmitting previously provided evidence or reasserting previously stated facts will not meet the requirements of a motion to reopen.

A motion to reconsider raises questions of LAW -- that is, 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."

What is the Process?

The method of filing a motion to reopen or a motion to reconsider is by filing Form I-290B (Notice of Appeal or Motion). Form I-290B must be filed within 30 days of an adverse/unfavorable decision from the AAO. If Form I-290B is not filed by the deadline, the AAO will deny the motion (or motions).

The resolution of a motion to reopen or a motion to reconsider is generally based on the paper and documents that are filed. For example, with a motion for reconsideration, the motion must contain the case law, statutory citations, or references to USCIS decisions/policies that prove there has been an error in the application of the law. Attorneys for the immigration services will have an opportunity to file a response to the motion to reopen or the motion to reconsider. The attorneys for the immigration services will also support their filings with evidence and citations to the statutes, regulations, and USCIS policies. Generally, the AAO does not have in-person hearings. Sometimes, as part of evaluating a motion to reopen or a motion to reconsider, the AAO adjudicating officer will issue a request for evidence or notice of intent to deny. If this is done, then essentially, the AAO is asking for more evidence. After some weeks or months, the AAO will make a ruling on the motion to reopen or the motion to reconsider, which will basically be a final decision. Sometimes it is not advisable to appeal, and it may be better just to refile your application or petition.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone, and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.


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