Motions To Reopen
All of the family-sponsored visa categories, except for the immediate relative category, are subject to backlogs that can last up to a decade. Naturally, a lot can change during this time. Failure to notify USCIS of relevant changes can have disastrous effects on pending cases, including outright denials. For instance, a U.S. citizen petitioning for his married alien son or daughter may change his residential address one or more times during the typical 8 or 9 year period while the case is pending (for example, from New Jersey to Pennsylvania). If the petitioner did not notify USCIS specifically of the address change, and if USCIS thereafter issues and sends a request for more evidence to the previous address, then the petitioner will most likely not be aware of the request and will therefore fail to respond to it before the designated deadline. This normally, in turn, results in the case being denied and years of waiting going to waste. Many of our clients were not even aware that their cases had been denied until they decided to contact USCIS themselves or check online.
There is hope for cases with these and similar circumstances. If the denial notice permits, the petitioner may file a motion to reopen the case with USCIS through Form I-290B. In a motion to reopen, the petitioner must put forth an argument based on factual grounds exemplifying new evidence or a change in circumstances (e.g., the change of address and unintentional failure to notify USCIS in the example above). Evidentiary materials should be submitted with the motion, usually in the form of affidavits from the petitioner attesting to the change of circumstances involved.
Other options for denied cases include motions to reconsider and appeals. Deciding which route to pursue will depend on the nature of the denial, the conditions that would optimally lead to a favorable outcome, and a nuanced understanding of the different approaches. While a motion to reopen relies on factual evidence, a motion to reconsider must include an argument predicated on legal grounds that cites specific reasons why the denial was incorrect at the time of the decision. While both a motion to reopen and a motion to reconsider are initially submitted to the same adjudicating officer that issued the denial, appeal requests (Form EOIR-29) are normally used when the petitioner wishes for a higher-level adjudicating offer to review their case. Be aware, however, that the appeal process may result in a much longer wait before a final decision is rendered.
While overturning a denial is challenging, our immigration practice in New Jersey has a proven track record of successfully reopening cases and winning appeals. We help our clients attain the right evidence and articulate strong, cogent arguments in favor of our motions. For additional information, please contact our firm.