Options following Denial of a Visa Petition: Administrative Review, Appeals and Motions

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When USCIS denies a visa petition, the law provides strict deadlines in which a motion or an appeal may be filed. You will find the deadline in your particular case at the end of the denial notice.

Failure to file a Motion or Appeal before the specified deadline will result in permanent loss of appeal rights. As such, it is critical that you act straightaway to remedy the denial, to avoid the loss of these important rights.

Depending on the type of Petition you have filed, your immediate remedies may include: Administrative Review; Motion to Reopen; Motion to Reconsider; and Appeal to the AAO or BIA.

It is important to note that only the Petitioner (or their attorney) can file a request for administrative review, a motion or an appeal in a visa petition case. A Beneficiary cannot request administrative review, or file a motion or appeal, unless he is both the Petitioner and the Beneficiary.

Administrative Review

Petitioners that paid for Premium Processing may lodge a remedy known as Administrative Review. To succeed in an Administrative Review you will be required to demonstrate that the Reviewing Officer overlooked important evidence or improperly applied the relevant regulations or case law. Success in an Administrative Review may result in a reversal of the Denial. The turnaround time in an Administrative Review is usually 7 to 10 days.

Motion to Reopen

A Motion to Reopen is a request to the original decision maker to review a denial. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances, and must state the new facts to be considered in the reopened proceedings. A Motion to Reopen may be supported by new affidavits or other documentary evidence.

Motion to Reconsider

A Motion to Reconsider is a request to the original decision maker to review a denial, based on legal arguments. The motion must establish that the decision was incorrect based on the evidence on record at the time of the decision, and it must state the reasons for reconsideration. A Motion to Reconsider must be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy. New evidence or changed circumstances cannot support the filing of a Motion to Reconsider.

A written letter submitted to USCIS is not considered a motion. Instead, a motion must be filed on the appropriate form and submitted with the required filing fee, unless the fee is waived.

Generally, motions must be filed within 30 days from the date that USCIS issued its denial — not from the date you actually received the decision in the mail. If you post your motion, you must allow enough time for the document to reach USCIS by the deadline, and make certain that you use recorded delivery to prove that you actually met the deadline.

In most cases, USCIS should issue a written decision on any properly filed motion within 90 days. However, filing a motion will not suspend the execution of any decision made in your case or extend a previously set departure date.

Ultimately, if USCIS denies or dismisses your motion, you may appeal to the USCIS Administrative Appeals Office (“AAO”) — if the original decision was appealable to the AAO.

Appeals

Generally speaking, an Appeal is a request to a higher authority to review a decision. In a visa petition, the right to Appeal is available only in some unfavorable decisions: either to the AAO or to the Board of Immigration Appeals (“BIA”). Your denial notice will provide information about whether the decision may be appealed, and, if so, whether it should be filed with the AAO or the BIA.

When a petitioner appeals a decision to the AAO, the officer who made the original decision will first review the record. The adjudicating officer will then determine whether the evidence or argument submitted in the appeal warrants reopening or reconsidering the decision. In other words, an appeal to the AAO is also, in effect, a Motion to Reopen or Motion to Reconsider.

If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, she will forward the case for further review to the AAO or the BIA.

As in the case of a Motion to Reopen and a Motion to Reconsider, an appeal generally should be filed within 30 days from the date the decision was issued (not the date you received the decision in the mail). In some cases, a shorter appeal period may apply.

Regardless of the deadline applicable to your case, USCIS does not approve deadline extension requests. Instead, deadlines are strictly enforced. If you fail to file your Appeal in time to meet the deadline, you will forever lose your appeal rights. As in the case of motions, if you post your Appeal, you must allow enough time for the document to reach USCIS by the deadline. A postmark is not enough. Hence, we recommend that you use recorded delivery to prove you actually met the deadline.

Appellate Brief

It is not required to submit an appellate brief with an Appeal. However, most well-seasoned appellate lawyers will prepare a forceful appellate brief on behalf of their client, which cites both to the record, as well as to the applicable law, in an effort to have the negative decision overturned.

If you choose to file your own Appeal without the assistance of an appellate lawyer, you must at minimum include a well-written explanation as to why you believe the earlier decision was in error. If you fail to provide either an appellate brief or an explanation of why you believe the decision was in error, your Appeal will likely be denied.

In most cases, the AAO will attempt to decide an appeal within six months of receipt. However, some cases may take longer to decide; especially those in the more complex business categories, such as L-1A and H-1B.

The Importance of Obtaining a Second Opinion

The preparer of the original visa petition is not always the best person to prepare and file a request for Administrative Review, Motion to Reopen, Motion to Reconsider, or Appeal. Instead, it is often recommendable to have ones visa submission reviewed independently in conjunction with the Denial, to allow for maximum objectivity in strategizing a response.

Ortega-Medina & Associates has over fifteen years experience dealing with US business visa matters. We have experienced success in many cases that were considered hopeless by other law firms. Our Senior Associate has presented cases before the EOIR, AAO, BIA and Courts of Appeal. He is frequently consulted by front-line colleagues to help resolve complex RFEs, and to prepare their requests for Administrative Review, Motions and Appeals. Please contact us should you wish for us to review an RFE or to discuss a recent denial of your visa petition.