Motions Appeals Resources Instructions to Form I290 B

Motions & Appeals Resources: • Instructions to Form I-290 B & Form EOIR-29 • Adjudicators Field Manual (AFM): Chapter 10. 17 • Title 8 Code of Federal Regulations (CFR) at Parts 103. 3 and 103. 5 Texas Service Center, Quality Assurance & Training Team October 21, 2010

Purposes of Motions & Appeals If USCIS issues an applicant or a petitioner an adverse decision, such as a: o o o Notice of Denial Notice of Revocation Notice of Rescission Then the applicant or petitioner may make a formal request known as a motion in order to have the decision reevaluated by USCIS.

Purposes of Motions & Appeals Two types of motions exist within USCIS and they are described as: o Motion to Reopen- a formal request for USCIS to retract the original decision based on new, unknown evidence that was not available at the time of the original decision. o Motion to Reconsider- a formal request for USCIS to reconsider the original decision without introducing new evidence that is based on precedent decisions, establishing USCIS has misapplied laws or policies.

Purposes of Motions & Appeals For certain immigration applications and petitions, where laws or regulations permit, an applicant or a petitioner may file an appeal to an adverse decision from USCIS. o An appeal is a formal request for a higher appellate body to review the decision for legality. The two appellate bodies over USCIS decisions are: o o Administrative Appeals Office (AAO) Board of Immigration Appeals (BIA)

Jurisdiction of Motions & Appeals The USCIS office that made the adverse decision will make the decision on a motion. The BIA will make the decision on an appeal for the following immigration forms currently adjudicated at Texas Service Center (TSC): o o Form I-130 (Petition for Alien Relative) Form I-360 (Petition for Special Immigrant) under the category of a widow(er) of a United States citizen

Jurisdiction of Motions & Appeals The AAO will make the decision on an appeal for the following immigration forms currently adjudicated at TSC: o o o Form I-140 (Immigrant Petition for Alien Worker) Form I-601 (Application for Waiver of Grounds of Inadmissibility) Form I-602 (Application by Refugee for Waiver of Grounds of Excludability) Form I-612 (Application for Waiver of Foreign Residence Requirement) Form I-817 (Application for Family Unity Benefits) Form N-565 (Application for Replacement Naturalization/ Citizenship Document)

Essential Elements for Motions & Appeals To file a motion to reopen, the applicant or petitioner must file the following items at the USCIS office that made the adverse decision: o o o Fully executed Form I-290 B Required fee Copies of any new documents or evidence that USCIS did not previously have in the applicant’s or petitioner’s record at the time USCIS made the adverse decision

Essential Elements for Motions & Appeals To file a motion to reconsider, the applicant or petitioner must file the following items at the USCIS office that made the adverse decision: o o o Fully executed Form I-290 B Required fee A statement or brief giving the reasons for USCIS to reconsider the adverse decision and full references to precedent decisions (or a copy of the precedent decision) that establish USCIS’s misapplication of the law or policy

Essential Elements for Motions & Appeals To file a motion to reconsider and a motion to reopen at the same time, the applicant or petitioner must file the following items at the USCIS office that made the adverse decision: o o Fully executed Form I-290 B Required fee A statement or brief giving the reasons for USCIS to reconsider the adverse decision and full references to precedent decisions (or a copy of the precedent decision) that establish USCIS’s misapplication of the law or policy Copies of any new documents or evidence that USCIS did not previously have in the applicant’s or petitioner’s record at the time USCIS made the adverse decision

Essential Elements for Motions & Appeals To file an appeal, the applicant or petitioner must file the following items at the USCIS office that made the adverse decision: If filing an appeal on Form I-130: o Fully executed Form EOIR-29 OR o If filing an appeal on all other form types (except certain legalization cases): o Fully executed Form I-290 B o Required fee o Copies of supporting documents, evidence, and/or a statement or brief identifying any specific erroneous conclusions of law or fact that USCIS made in the original adverse decision o

Prohibitions on Motions & Appeals The beneficiary of a petition may never file a motion or an appeal with USCIS o Only the petitioner or applicant may file a motion or an appeal o A person who is petitioning for himself or herself may file a motion or appeal (since he or she is both the petitioner and the beneficiary) A motion or appeal must be filed within 30 days from the date of the adverse decision o A motion may be considered after 30 days if a statement is submitted with the motion explaining why the delay for filing was reasonable and beyond the applicant’s or petitioner’s control. o An appeal may be granted additional time by the AAO or BIA to provide a brief and/or evidence if a statement is submitted with the appeal explaining the need for additional time.

Distinguishing Motions from Appeals Only the AAO or BIA may decide an appeal. o However, TSC may treat an appeal as a motion for purpose of granting the motion The applicant or petitioner will receive a written decision from TSC concerning the decision to grant or dismiss a motion. The applicant or petitioner will receive a written decision from the AAO or BIA concerning the decision to sustain or dismiss an appeal.

The Virtual Law Library Several precedent decisions from the Board of Immigration Appeals (BIA) govern the adjudication of motions and appeals. o o The BIA’s index lists decisions concerning motions and appeals. These decisions are invaluable for preparing and adjudicating a motion or an appeal and are available to the public at the website: www. justice. gov/eoir/vll/intdec/lib_indecitnet. h tml

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