Transcript Form I-130

Motions & Appeals
Resources:
• Instructions to Form I-290B & 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
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-290B
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-290B
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
o
o
Fully executed Form I-290B
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:
o 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-290B
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
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.ht
ml
THE END
THANK YOU!
QUESTIONS,
ANYONE?