In some cases, it is possible to challenge a denial decision made by the U.S. Citizenship and Immigration Services (USCIS) on an application or petition for an immigration benefit. This challenge is made either through the filing of a motion to reopen or reconsider (motion, or MTR) with the USCIS, or an appeal to the Administrative Appeals Office (AAO). The procedures governing the filing and processing of MTRs and appeals are complex, and important issues such as timing generally must be carefully considered before proceeding with such a filing.
Background Information on MTRs
If the USCIS issues a denial, the applicant / petitioner usually has the option of filing an MTR to challenge that decision. Once filed, the USCIS office that issued the denial is also responsible for making a decision on the motion. The motion can request that the original denial be reopened and/or reconsidered. If the decision is reopened, the underlying case is returned to pending status and the USCIS issues a second decision on the case. If the USCIS favorably reconsiders, this results in an approval of the case that was previously denied.
A motion to reopen requires that the applicant provide new facts that are supported by affidavits or other new evidence. A motion to reconsider, on the other hand, must state how the USCIS decision was incorrect, based upon the evidence previously provided, and it must include sufficient legal basis for the requested reconsideration.
Background Information on Appeals
Although decisions made by the USCIS on many types of cases may be appealed to the AAO, denials issued for certain types of cases that involve discretionary decisions may not be challenged in that manner, such as on applications to adjust status (I-485s). Additionally, certain family based petitions are appealed to a different appeals body, the Board of Immigration Appeals (BIA). Procedurally, cases appealed to the AAO are first sent to the USCIS office that issued the denial decision. The USCIS then reviews the appeal filing and, if persuaded to do so, may decide to treat the appeal as a motion and issue an approval decision. If the USCIS does not choose to treat the case as a motion, it forwards the matter to the AAO for an independent review and decision.
Timeframe to Process a Motion
The USCIS does not publish specific processing timeframes for motions. While the agency has indicated that its goal is to process motions within three months. While motions are often decided within this three-month timeframe, it is not unusual for the process to take much longer in certain cases.
AAO Aims for 6 Months Processing Goal
With regard to appeals at the AAO, the processing times have historically been much longer than motions. In years past, it was typical to experience timeframes of one to two years for the AAO to render a decision. In recent years, since around 2013, the AAO started clearing its backlog of cases and improving processing times. In fact, it was indicated in the original publication of this writing that, on the AAO WebSite, appeals were being adjudicated within six-months or less. Attorneys have reported that some appeals with the AAO have dragged on longer than the reported six-month timeframe. Further, the six-month adjudication period does not include the time that the USCIS has to review the appeal and decide whether to treat it as a motion before forwarding it to the AAO. The USCIS policy sets a goal of 45-days for this decision, but that goal is not always met.
Processing Delays Beneficial in Some Situations
While a faster appeals process is generally best for all parties involved, there are situations in which a long adjudication process can be beneficial for the applicant/s, and may factor into the development of legal strategies. For instance, if an I-140 petition is on appeal to the AAO, it may still be used to extend the beneficiary's H1B status beyond the six-year limit. It also may serve to preserve the age of a beneficiary child under the Child Status Protection Act, if the I-140 is ultimately approved.
Conclusion
The filing and processing rules for motions and appeals are complex and require a thorough understanding in order to decide on the proper course of action after a denial has been issued on a petition or application. It is also necessary to understand current trends and developments related to key matters, including the important issue of processing timeframes. It is advisable, therefore, to consult with an attorney knowledgeable in immigration law, who can devise a specific strategy and follow the case through to the end of the process. Attorneys at the Murthy Law Firm have extensive experience in the practice on appeals and motions and are available to explore these options with MurthyDotCom readers who need help to achieve their overall immigration objectives.
This August 8, 2013 NewsBrief has been updated for MurthyDotCom readers.
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