USCIS Special Motions To Reopen And Reconsider: Second Chance For Denied Cases
Author: NYC Immigration Lawyer Alena Shautsova
A motion to reopen/reconsider is a tool that is used to correct an adverse or erroneous decision that was made by USCIS with regard to petitions and applications. Motions to reopen are available for almost all types of forms, even where appeals are not available: for example, a denied I 485 form for adjustment of status cannot be appealed, but an applicant can file a motion to reopen/reconsider.
All motions to reopen/reconsider can be divided into two categories: a regular motion, that is filed by the affected party who has a right to file such a motion, and service motions.
The procedures for motions to reopen or reconsider before USCIS are defined by 8 CFR 103.5. Beneficiaries whose applications are denied must be informed of their right to file a motion to reopen or reconsider, or both. Policy Memo. USCIS, PM-602-0028.
Service motions are the ones where USCIS in the exercise of its own discretion reopens the case to address an error or mistake. Service motions should be free of charge.
What to do if USCIS denied an application for failure to attend fingerprints appointment?
Expedited Motions To Reopen For Administrative Errors
USCIS has a procedure for an expedited process to address clerical and administrative error where an application is denied. This procedure will be used if an application is considered abandoned for failure to attend a fingerprint appointment, failure to answer a request for more evidence which was actually never mailed to the applicant/petitioner. In fact, such an expedited request can be submitted with USCIS via customer service number 1 800 375 5283. USCIS employees must process such a request within five business days. This procedure can be used when an application is denied:
- For failure to answer an RFE, NOID, or NOIR and there is evidence that the applicant responded and USCIS received the response;
- For failure to respond to an RFE, NOID, or NOIR, and there is evidence that USCIS did not send the RFE, NOID, or NOIR to the applicant or his/her attorney;
- Where the applicant missed the fingerprint appointment or did not receive an RFE, NOID, or NOIR because it was mailed to the old address while the applicant properly changed his/her address;
- Where the application is denied for failure to attend biometrics appointment where there is evidence that the applicant requested the reschedule of the appointment or that it was actually attended.
This expedited procedure does not substitute motion to reopen process and the need to file I 290B notice with the filing fee, but if the issue is resolved before the 30 day- motion period, then there will be no need for the I 290B filing at all.
Note that the same form I 290B is used for motions to reopen, reconsider, both or certain appeals. For the appeals that must be filed with the Board of Immigration Appeals, a different form is used.
DHS may reopen or reconsider a decision on its own motion to render a favorable or unfavorable decision. If the decision will result in a denial, the DHS shall give the affected party a 30-day notice after service of the motion to submit a brief. The affected party, however, may waive the 30 days period. 8 CFR 103.5(a)(5)(ii).
Interestingly enough, when one files a motion to reopen with USCIS, he/she does not need to show that the evidence was previously unviable (which is often the case in courts), only that the evidence was not previously submitted and are relevant to the issue.
If you need help with a denied petition or application, reserve a confidential consultation by calling our New York Immigration lawyer at 917-885-2261.