What to Do After Your USCIS Application Is Denied. Understanding the Motion to Reconsider & Motion to Reopen.

Dealing with an immigration denial notice can be extremely upsetting, especially after investing significant effort. However, it's essential to understand that a denial doesn't necessarily signal the end of your case. We're here to help clarify your next steps, particularly focusing on the crucial options of filing a Motion to Reconsider or a Motion to Reopen with U.S. Citizenship and Immigration Services (USCIS).

A USCIS denial means that your application or petition has been reviewed and found lacking or that an unfavorable decision has been made. In some cases, the next step may be to file a Motion to Reconsider or a Motion to Reopen, which requests USCIS to review the case again. To determine whether to file either motion, it’s advisable to consult with an experienced attorney who can guide you through the process.

If you received a denial and have questions about what you can do, please CONTACT US.

A Motion to Reconsider: Asking USCIS to Think Again

Imagine you've presented your case, and USCIS has decided to deny your request based on their understanding of the facts and the law. A Motion to Reconsider asks them to review the existing record (everything you provided). You're arguing that they incorrectly applied the law or their policies to the facts you presented.

In essence, you believe USCIS applied the rules incorrectly after you showed them all the information. So, you file a Motion to Reconsider to point out their mistake and ask them to make a new, correct decision.

Key things to know about a Motion to Reconsider:

• Focuses on the existing record: You can't introduce new evidence with this type of motion.

• Highlights errors in law or policy: You need to clearly explain how USCIS got it wrong based on the regulations or internal guidelines.

• Strict deadlines: Generally, you must file a Motion to Reconsider within 30 days of the date on the denial notice. Missing this deadline can be fatal to your case.

Motion to Reopen: Bringing New Information to the Table

Since you filed your initial application, some significant new information has come to light that could change the outcome of your case. Perhaps you've received new documents, a change in circumstances has occurred, or you've uncovered previously unavailable evidence. This is where a Motion to Reopen becomes relevant.

Think of this as returning to the decision maker with new evidence unavailable during the initial hearing. You're saying, "since the last ruling, these crucial new facts have emerged that would significantly impact the decision". It's like letting them know new important info popped up after their decision, and that might change things.

Key things to know about a Motion to Reopen:

• Introduces new facts and evidence: This is the key difference from a Motion to Reconsider.

• Must show the new evidence is material: The latest information must be relevant and potentially change the case outcome.

• You must explain why the evidence wasn't available earlier. USCIS wants to know why this information couldn't have been submitted with the original application.

Which Motion is Right for You?

Deciding whether to file a Motion to Reconsider or a Motion to Reopen is a critical decision that depends entirely on the specific reasons for the denial and the circumstances of your case.

• If the denial was based on a misunderstanding of the law or the facts you presented, a Motion to Reconsider might be appropriate.

• If you have new, significant information that could impact the decision, a Motion to Reopen could be a better option.

• It is sometimes possible to file both types of motions simultaneously.

Motion to Appeal: Taking Your Case to a Higher Authority

Unlike Motions to Reconsider or Reopen, which are filed with USCIS, appeals are filed with the AAO, a separate administrative body within the Department of Justice.

Similar to a Motion to Reconsider, an appeal generally focuses on the evidence already presented to USCIS and argues that USCIS misinterpreted the law or made incorrect factual findings based on that evidence. You typically cannot introduce new evidence at the appeal stage.

The appeal process with the AAO is generally more formal and can take longer than the process for Motions to Reconsider or Reopen.

Important Considerations for Motions to Appeal:

• Not all USCIS decisions can be appealed to the AAO. The denial notice usually indicates whether the decision is appealable. Certain denials, especially those involving discretionary choices, may not be eligible for appeal.

• Strict Deadlines. Like Motions to Reconsider, there are strict deadlines for filing an appeal, typically 30 days from the date of the denial notice. Missing this deadline will likely bar your ability to appeal.

• Legal Arguments are Crucial. A successful appeal hinges on presenting clear and compelling legal arguments explaining why USCIS's decision was incorrect. This requires a deep understanding of immigration law and the specific regulations related to your case.

• No New Evidence (Generally). As mentioned earlier, you usually cannot submit new evidence with an appeal. The AAO will base its decision on the record before USCIS at the time of the denial.

Why You Need an Experienced Immigration Lawyer

Navigating the complexities of denials can be challenging. Understanding the reasons for the refusal and crafting a compelling legal argument are crucial for success. At Revital Shavit Immigration Law, we have extensive experience analyzing denial notices and determining our clients' best course of action. 

Our experienced U.S. Immigration Lawyer can help you make the right decision. We will: 

• Analyze the denial notice: We thoroughly review your notice to identify the reasons for rejection.

• Determining the optimal strategy: We assess whether a Motion to Reconsider, a Motion to Reopen, or both best suits your circumstances.

• Gather and organize evidence: We assist in compiling and structuring any required new evidence.

• Craft a compelling motion: We prepare a well-argued and legally sound motion addressing USCIS's specific concerns.

• Meet critical deadlines: We ensure all necessary deadlines are adhered to meticulously.

Please CONTACT US for more information on how to deal with USCIS’s denials.  

This article has been prepared for general information purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change. Readers should contact their attorneys to obtain advice concerning any particular legal matter.