My Case has been denied!!! What to do? Motions to Reopen and Motions to Reconsider

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Dev B. Viswanath, Esq. (Photo courtesy of Dev B. Viswanath, Esq.)

One question that has come up, is what options are available for people when their case is denied by US Citizenship & Immigration Services (USCIS). Generally, if a case is denied, there are five options: 1) Do nothing and let the decision become final, 2) File a Motion to Reopen, 3) File a Motion to Reconsider; 4) File both a Motion to Reopen and Reconsider; or when available and prudent 5) File an Appeal. In this article we will discuss Motions to Reopen and Motions to Reconsider.

When your case has been denied by USCIS, as a general matter, the Agency must provide you with an explanation of why the matter is to be denied. The reasoning behind the decision to deny. In the unfortunate situation whereby a denial is received, you may want to consider to file a motion and see if you can get the case back on track while preserving rights and timelines. A Motion to Reopen is a motion based on new evidence that may not have been available or was impractical to be available initially. However, with that information, it may help to adjudicate the petition or application favorably. A Motion to Reopen must generally be filed within 30 days of a decision date (33 days if the decision was mailed).

If all the facts and documents were already submitted and a person still received a denial, it is possible that USCIS did not follow the law correctly or maybe misapplied established policy. In this situation, you might want to consider a Motion to Reconsider. This is where we try to convince the USCIS that they may not have followed the letter of the law or they have misapplied the law or precedent policy by the agency. No new documents or information is provided in a Motion to Reconsider but law and policy are often cited to convince the agency to change the decision.

If you believe that there is new evidence that was not previously available and that USCIS may have also misapplied the law, it is possible to do a simultaneous Motion to Reopen and Reconsider. In this motion, we must satisfy both requirements articulated above. USCIS will generally review the matter under both ground and adjudicate the matter under both.

Motions to Reopen and Motions to Reconsider may be useful in several ways: 1) The adjudication time may be quicker than an appeal, 2) If you are successful, you can preserve your initial priority date and any benefits that come from the time period of filing, and 3) its vindication for your initial application. Some things to consider are that the motion is going back to the same USCIS unit, and possibly the same USCIS officer that initially reviewed and denied the petition/application so you need to weigh out the equities of whether you think you can convince the same players on round 2. Also, an appeal will generally be available even after an unsuccessful motion so it may just be a “3rd bite at the apple”. Motions can also be wonderful tools to use when there is a clear path towards answering USCIS issues that were raised in denial.

Attorney Dev Banad Viswanath will be in India, working out of the Bangalore and Mumbai offices from September 27th through October 15th, if anyone would like to schedule a consultation to discuss their immigration or visa matters.

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