My Case has been denied!!! What to do? Motions to Reopen and Motions to Reconsider
By: Dev Banad Viswanath, Esq.
In this day of coronavirus and quarantines and shelter-in-place orders, life is a mere shell of its former self. In the immigration world, many people have questions related to all the shutdowns, suspensions, and delays. One other question that has come up, is what options are available for people when their case is denied. Generally in a denial, there are five options:
1) Do Nothing, 2) File a Motion to Reopen, 3) File a Motion to Reconsider; 4) File both a Motion to Reopen and Reconsider; or when available 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 filing a motion and see if you can get the case back on track. 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, 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.
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.
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) It's a vindication of 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. Also, an appeal will generally be available even after an unsuccessful motion. Motions can also be wonderful tools to use when there is a clear path toward answering USCIS concerns.
If you or a loved one have had any denials on petitions, please consult with an experienced and knowledgeable attorney.
