If USCIS issues an unfavorable decision on your petition or application, you often have options to challenge it. The main routes are an appeal or a motion. Both use Form I-290B (Notice of Appeal or Motion).
An appeal takes your case to the Administrative Appeals Office (AAO) for a fresh review, while a motion asks USCIS to correct its own decision. The AAO “conducts administrative review of USCIS officers’ decisions” over many immigration benefit requests.
In general, only the petitioner (not the visa beneficiary) has “legal standing” to appeal a petition’s denial.
Who Can File and What Can Be Appealed
Not every denial can be appealed. USCIS must inform you if your case is appealable and supply Form I-290B. Per regulation 8 CFR § 103.3(a), the “affected party” (i.e., the petitioner or applicant) must file an appeal with I-290B within 30 calendar days of service of the decision. The rule generally allows 30 days to file or 33 days if USCIS mailed the decision. There are few exceptions, for example, a revocation of an SIJ petition has a 15-day deadline. Motions to reopen or reconsider follow the same timeline, but USCIS can waive a late filing for a motion if the delay was “reasonable and beyond [the filer’s] control”.
The AAO has limited jurisdiction. It handles appeals for many immigrant and non-immigrant petitions (such as I-129, I-140, I-526, I-360, I-485 cases in certain categories, etc.), but not all cases. For example, most adjustment of status (I-485) denials aren’t appealable to the AAO; instead, one might file a motion or other remedy. Always check the denial notice: if it’s appealable, USCIS must say so. An appeal under AAO will use de novo review, meaning AAO looks at the case anew and can even find new legal issues that the original officer missed.
Example scenarios:
If your I-140 (Immigrant Petition for Alien Worker) was denied, you generally can appeal to the AAO by filing an I-290B on time. If an approved H‑1B petition (I-129) is revoked, the petitioner (employer) can appeal that revocation. If an EB-5 investor petition (I-526) is denied, AAO appeals are available. Even many family petitions (like I-130) or other benefits can be appealed if the denial notice allows it. If you only received a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), those are not final decisions and can’t be appealed; you must first respond and await a denial.
Filing the Notice of Appeal or Motion (Form I-290B)
To start, fill out Form I-290B, Notice of Appeal or Motion. On the form, you will check whether this is an appeal or which type of motion (reopen/reconsider/combined) you are filing. The form instructions explain all requirements. Important details:
- Deadline: You must mail or file I-290B within 30 days of the decision date (or 33 days if mailed). USCIS is strict about this deadline, though they may excuse a late motion to reopen under very limited circumstances.
- Fee: The current filing fee is $705 (for either an appeal or a motion). There are a few narrow fee waiver exceptions, e.g., for certain special immigrant visa cases. Always check the latest USCIS fee schedule.
- Where to File: You file at the address specified by USCIS for appeals or motions on that case type. USCIS’s website has “Direct Filing Addresses” pages. Do not send the appeal to the AAO unless instructed – appeals are usually first reviewed by the original office. Double-check the address before mailing.
- What to Include: Include a copy of the decision you’re appealing (or motioning), your evidence or brief, any new documents (for motion to reopen), and a clear statement of your arguments. Writing a concise legal brief can be helpful. In an appeal, your brief should identify each error and explain why USCIS’s decision should be overturned. In a motion, either point out the legal mistakes (reconsider) or attach the new facts/evidence with an explanation (reopen).
Grounds for Appeal or Motion
A key part of your filing is explaining why USCIS erred. Common grounds include:
Erroneous Conclusion of Law: If USCIS incorrectly applied statutes, regulations, or policy, explain what law applies and why the decision was wrong. This is the main basis for a motion to reconsider.
Erroneous Statement of Fact: If the officer misunderstood evidence or facts, point that out. Explain the true facts and how they meet the legal requirements.
New Facts / New Documentary Evidence: For a motion to reopen, you must present material evidence not previously submitted. This could be documents that were unavailable before or new qualifying events. For example, a late marriage certificate, updated financials, or other proof that changes eligibility.
Incorrect Application of Policy: Similar to a legal error, if USCIS misused a policy memo or precedent, highlight the correct interpretation.
Combination: You may have both new evidence and a legal argument. I-290B lets you file a combined motion (reopen + reconsider). USCIS will evaluate each part on its own merits.
If you fail to specifically identify the legal or factual error, the appeal can be dismissed. The regulation explicitly says an appeal “shall summarily dismiss any appeal when [the appellant] fails to identify … any erroneous conclusion of law or statement of fact”. So focus your brief on concrete mistakes or gaps.
Process and Timing
Once filed, your appeal first goes through two stages. The office that made the unfavorable decision has 45 days to review the appeal and decide if they will grant the benefit. If they do nothing or deny on review, the case moves to the AAO, which then has the record. From that point, the AAO’s goal is to complete its review within 180 days of receiving the full case. In practice, most appeals finish in under six months.
For instance, USCIS reports that in one recent quarter, about 96.79% of AAO cases were completed within 180 days. However, very complex cases or those needing more evidence may take longer.
Motion Timing
USCIS field offices and service centers generally try to adjudicate motions (reopen/reconsider) more quickly, often within 90 days of filing. But times vary widely by office. You can check USCIS’s online Processing Times tool by selecting Form I-290B and the corresponding office.
Expedited Processing
If you have an urgent reason, you can request expedited handling of your appeal or motion. USCIS does allow expedited requests, but only in truly exceptional cases like urgent humanitarian need, severe financial loss, etc. For an AAO appeal, you typically send a letter marked “EXPEDITE REQUEST” to the AAO by mail or fax, explaining the situation. Approval of expedites is discretionary and rare.
Effect of Filing
Filing an appeal or motion does not automatically pause anything (unless specifically noted). It does not restore any benefit or stop a revocation. You can’t count on status being “on hold” just because you filed. Only if USCIS grants the motion or appeal (sustains it) will the underlying decision be overturned or changed.
Untimely Filings
If you file late, an appeal is generally rejected. For motions to reopen, USCIS has the limited authority to excuse a delay if you show good cause (reasonable and beyond control). There is no similar excuse for appeals or motions to reconsider; those must meet the 30/33-day rule exactly.
Possible Outcomes
After review, the AAO issues a written decision. It will state one of the following in plain terms:
- Sustain (Approve): The AAO agrees with you and grants the benefit. This is often phrased as “sustaining the appeal.” The petition or application is then approved.
- Dismiss (Deny): The AAO denies your appeal. This means the original decision stands. If dismissed, the decision document will explain why. Often, it will note that no error of law or fact was shown, or that even with new arguments, the requirements are not met.
- Remand: The AAO may remand the case to the original USCIS office for further action. This happens if the AAO finds a problem that needs more factual development, for example, because key evidence needs to be gathered or interviews conducted. A remand essentially sends it back for re-adjudication under the AAO’s guidance.
The AAO issues non-precedent decisions by default (these apply policy to your facts), but it may also issue adopted or precedent decisions if the case has broader significance.
If the AAO dismisses your appeal (or if you withdrew it), the USCIS denial remains final. Your remaining options depend on the form: sometimes you can file another motion (if new evidence arises), or appeal to federal court. For example, a denied I-485 applicant with no further motion rights might file in the U.S. District Court. But for many employment or petition cases, the AAO and then the court is the forum.
Filing Tips and Practical Advice
- Prepare a Clear Brief: Even though I-290B is a short form, include a separate brief with the form and fee, explaining your case. Use plain language to summarize key facts, cite statutes/regulations, and directly counter USCIS’s reasons for denial.
- Submit New Evidence Wisely: Only file truly new evidence on a motion to reopen. If something was missing from your original filing, a motion is the right place to fix that. Keep evidence well-organized and clearly labeled.
- Highlight “Beneficial” Facts: Emphasize any facts that decisively meet eligibility. Show that even by USCIS’s standards, you qualify. If you can tie those facts to existing evidence, you strengthen your appeal.
- Check “Who” Can Appeal: Remember that only petitioners or applicants (not beneficiaries) can file. If you are a beneficiary and the petition is denied, you need the petitioner’s approval to appeal, or you may need a separate remedy, like proceeding in immigration court, if applicable.
- Review USCIS Form Instructions: The USCIS instructions for Form I-290B (on the USCIS website) give detailed filing rules, fee info, and addresses. Following them carefully can avoid procedural problems.
Filing After an AAO Decision
If AAO denies your appeal, sometimes another motion to reopen/reconsider can be filed on the same I-290B (within 30 days) if you have new evidence or believe the AAO decision also erred. However, in practice, once AAO issues a final decision, success on further motions is rare unless truly new and compelling.
Additional Resources
USCIS provides resources on appeals and motions on its website. The key regulations are in 8 CFR § 103.3 appeals and § 103.5 motions. The USCIS Policy Manual and the AAO Practice Manual give guidance on procedure. For case-specific questions, you can contact the USCIS Contact Center (1-800-375-5283) or the office that made the decision.
Remember: An appeal or motion can be your best legal option after a denial, but it must be done correctly and promptly. Organize your evidence, stick to the deadlines (30/33 days), and clearly state the errors or new facts. If you show that USCIS overlooked something or misapplied the law, the AAO has the power to overturn (sustain) your petition or application.
Ready to Challenge USCIS with Strategy — Not Guesswork?
When USCIS denies a benefit, you still have a legal pathway, but only if your AAO appeal or motion is done correctly, on time, and based on real legal grounds. Whether you need a de novo administrative appeal or a motion to correct USCIS’s own error, precision is everything. You do not need to navigate legal arguments, regulatory citations, AAO procedures, and filing rules alone.
At The Chidolue Law Firm, we prepare strong I-290B filings supported by exact evidence, detailed legal briefs, and clear argument structure that directly targets the error in the decision. We keep you informed at every stage, while we focus on protecting your case, your eligibility, and your future immigration path with USCIS.
📞 Call The Chidolue Law Firm today at:
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Let’s challenge your denial with the right legal framework, and fight for the approval you legally qualify for.
