Form I-290B: Understanding the Notice of Appeal or Motion Process

Form I-290B, officially termed Notice of Appeal or Motion, is a document utilized by individuals who seek to appeal or submit a motion regarding certain decisions made by the U.S. Citizenship and Immigration Services (USCIS). This form plays a critical role for those whose applications or petitions have been denied or dismissed and who believe that the decision was made in error. The proper use of Form I-290B can potentially reverse a negative decision or reopen a case for further examination by USCIS.

The process of appealing a decision involves submitting this form to the office that originally issued the unfavorable decision, accompanied by the appropriate filing fee. It is imperative that this form is completed accurately and submitted within the designated time frame after receiving the decision. Individuals who are beneficiaries of petitions such as Form I-140, I-17, or I-360, or VAWA (Violence Against Women Act) self-petitioners, may also use Form I-290B to appeal or file a motion if they disagree with the decision of their case.

Educational institutions may also engage with Form I-290B to address denials related to Form I-17, which pertains to the approval of schools for attendance by nonimmigrant students. This use of the form underscores its importance across a range of scenarios impacting immigration status and underscores the need for clarity and precision when engaging with immigration processes.

Overview of Form I-290B

Form I-290B, officially titled “Notice of Appeal or Motion,” is a legal document used within the United States Citizenship and Immigration Services (USCIS) framework. Individuals use this form primarily to request a review of a USCIS decision on a prior application or petition. It serves as the means to initiate an appeal with the Administrative Appeals Office (AAO) or to file a motion with the USCIS office that previously issued a decision.

Eligible Parties:

  • Applicants
  • Petitioners
  • Beneficiaries
  • Representatives

Purpose:

  • To appeal a USCIS decision
  • To file a motion to reopen or reconsider a USCIS decision

The form can also be used for certain appeals of Immigration and Customs Enforcement (ICE) denials of Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student.” The appeal or motion through Form I-290B must comply with specific regulations outlined in 8 C.F.R. § 103.3 and § 103.5.

Process:

  1. Complete Form I-290B.
  2. Attach Form G-28 if represented by an attorney or accredited representative.
  3. Submit the form to USCIS along with the applicable fee.

This form does not cover decisions or cases under the appellate jurisdiction of the Board of Immigration Appeals (BIA). It is essential for filers to ensure their eligibility for appeal or motion and to follow the USCIS guidelines closely when submitting Form I-290B.

Eligibility Criteria

The eligibility to file the Form I-290B, Notice of Appeal or Motion, hinges on specific types of immigration decisions, mandated timeframes, and certain unique exceptions.

Qualifying Decisions for Appeal

  • Denied Requests: A motion can be filed if a request to extend a stay or to change status is denied.
  • Nonimmigrant Classification: When the underlying petition for nonimmigrant classification is approved, but an extension or change of status is denied, a motion is applicable.
  • T and U Nonimmigrants: Individuals with T and U nonimmigrant status have specific filing provisions for Form I-192 with USCIS.
  • Certain ICE Form I-17 Appeals: Schools can employ Form I-290B for appealing specific denials related to ICE Form I-17, tied to the Student and Exchange Visitor Program (SEVP).

Time Limits for Filing

In general, Form I-290B must be filed within 30 days after the notification of the decision (33 days if the decision was mailed). However, the specific case type can affect the exact time limit:

  • Standard Cases: 30 days following the decision date.
  • Mailed Decisions: An additional 3 days are granted for mailed notifications.

Special Circumstances and Exceptions

There are particular scenarios and exceptions concerning the filing of Form I-290B:

  • T and U Nonimmigrants: These nonimmigrants file Form I-192 through USCIS rather than DHS Customs and Border Protection.
  • AAO Decisions: Appeals to the Administrative Appeals Office (AAO) must abide by distinct protocols.

It is crucial that individuals consult the latest USCIS guidelines or seek legal advice to ensure compliance with all criteria for filing Form I-290B.

Filing Instructions

When preparing to file Form I-290B, applicants must adhere to strict guidelines regarding documentation, fees, and the submission process to ensure the proper handling of their appeal or motion.

Required Documentation

Applicants must provide all relevant documents to support their case. This includes a copy of the decision they are appealing or the decision that they desire to reopen or reconsider. Evidence to support their argument or new information that was not available at the time of the original decision should also be included.

Form Filing Fee

The form filing fee for I-290B is $675. Some applicants may qualify for a fee waiver if they meet certain financial hardship criteria. To request a fee waiver, applicants must file Form I-912, Request for Fee Waiver, alongside Form I-290B.

Submission Process

Form I-290B must be filed within 30 days of the decision date (33 days if the decision was mailed). It should be filed with the USCIS office that issued the last decision in the case. If filing an appeal with the Administrative Appeals Office (AAO), the form and accompanying documents should be sent to the appropriate AAO address. Applicants should ensure they type or print in black ink and follow all instructions carefully. It is recommended to keep a copy of the complete package for personal records.

The Appeal Process

When an individual disagrees with a decision made by USCIS, they may file Form I-290B to initiate the appeal process. This action requests a review of the USCIS decision by a higher authority. The process is governed by established protocols to ensure a fair reconsideration.

Receipt and Acknowledgment of Appeal

Once Form I-290B has been submitted, USCIS issues a receipt notice acknowledging the appeal. The receipt is crucial as it not only confirms that the form has been received, but it also provides a unique tracking number that can be used to monitor the status of the appeal.

Review Procedures

The review procedures involve a thorough examination of the case file by the Administrative Appeals Office (AAO) or the original USCIS office that made the decision. The review will take into consideration any new evidence or arguments provided in the appeal to ascertain if the original decision should be upheld or overturned.

Decision Notification

The individual will be informed of the final decision through a written notice. The outcome may be a reversal of the previous decision, affirmation of it, or the appeal may be dismissed if found to be frivolous or without merit. The notification provides the detailed reasoning behind the decision reached upon the review of the appeal.

Motions

When stakeholders encounter an undesirable decision regarding immigration forms or petitions, they have the option to contest the decision through Form I-290B. Notably, filing a motion requests a review of the decision made by USCIS.

Types of Motions

Motions to Reopen: A Motion to Reopen is filed when new facts have emerged that were not previously available or considered. Stakeholders must supply tangible evidence to corroborate these new facts.

Motions to Reconsider: A Motion to Reconsider is based on the argument that the decision was incorrect based on the evidence and laws at the time of the decision. The motion must demonstrate that the decision was not in accordance with the law or USCIS policy.

Filing a Motion

Filing a Motion with USCIS involves the following steps:

  1. Complete Form I-290B: The form must be accurately filled, providing all necessary information.
  2. Include the Correct Fee: There is a fee for filing a motion, and applicants must ensure they submit the correct amount.
  3. Attach a Brief: A detailed brief must accompany the motion, outlining the reasons and legal bases for the motion.
  4. Timely Submission: The motion must be filed within 30 days of the decision (or 33 days if the decision was mailed).

Remember, the evidence submitted for a Motion to Reopen must be new, material, and not previously considered, while the arguments for a Motion to Reconsider should reflect errors in the application of law or policy.

Administrative Appeals Office (AAO)

The Administrative Appeals Office (AAO) is responsible for the appellate review of immigration cases. It provides an avenue for appeal in cases where the United States Citizenship and Immigration Services (USCIS) has made an unfavorable decision.

AAO Jurisdiction

The AAO has the authority to hear appeals from certain USCIS decisions. It encompasses a broad range of cases, including, but not limited to:

  • Employment-based petitions: Such as H-1B, L-1, and O-1 classifications.
  • Family-based petitions: Including I-130 and certain I-600 and I-800 petitions.
  • Fines and penalties: Appeals concerning fines and penalties imposed under the Immigration and Nationality Act (INA).

Standard Operating Procedures

The procedures for filing an appeal to the AAO are standardized and must be followed carefully to avoid dismissal or delays. Key procedural elements are as follows:

  • Filing: Appeals must be submitted using Form I-290B, titled ‘Notice of Appeal or Motion’, within the prescribed period, generally 30 days after the decision (33 days if the decision was mailed).
  • Fees: The appeal must be accompanied by the appropriate fee unless waived for qualifying reasons.

Decisions made by the AAO are final unless a motion to reopen or reconsider is filed and granted, or the case is selected for review by the Attorney General.

Judicial Review

When an individual or entity disagrees with the decision of the U.S. Citizenship and Immigration Services (USCIS), they may seek recourse through various means, including judicial review. Judicial review refers to the process by which a court examines the legality of an administrative agency’s decision—in this case, decisions made by the USCIS.

Eligibility for Judicial Review: Not all decisions made by the USCIS are subject to judicial review. Generally, the court only reviews final agency actions. Applicants must exhaust all administrative remedies, such as filing an appeal or a motion on Form I-290B with the Administrative Appeals Office (AAO) or the original USCIS office that issued the decision.

Process: If an appeal or motion is denied, and the applicant believes the decision was made in error or through a violation of law, they may then consider seeking judicial review. The applicant typically files a petition for review with the federal court with jurisdiction over the location where the original immigration decision was made.

Timeframe: It’s crucial to be aware of the specific deadlines for filing for judicial review. Federal laws stipulate strict time limits within which one must file a petition for review after an agency’s decision.

Impact: Judicial review is an essential component of the legal system as it provides a mechanism for oversight of administrative decisions, ensuring they comply with the law. However, the courts generally provide deference to the specialized expertise of the agency but will intervene if the agency’s action is found to be arbitrary, capricious, or contrary to the statutory mandate.

Legal professionals usually handle the filing for judicial review due to the complexity of the process and the need for proficient understanding of the law and its procedures.

Additional Resources

When dealing with the USCIS Form I-290B, “Notice of Appeal or Motion,” applicants have various resources at their disposal to ensure the appeal or motion process is comprehensively understood and correctly followed.

Official USCIS Website: The primary resource is the USCIS official website, where applicants can access:

  • The latest version of Form I-290B.
  • Direct Filing Addresses for Form I-290B, tailored to specific benefit types.
  • Instructions for completing and submitting Form I-290B.

Administrative Appeals Office (AAO): For appeals specifically, the AAO provides:

  • Guidelines on how to file an appeal.
  • Procedures to follow if submitting a brief within 30 days.

USCIS Customer Service Center: Applicants may contact the service center for:

  • General inquiries about the form.
  • Assistance with technical issues related to online submission.

Legal Assistance: It might be beneficial to seek guidance from:

  • Immigration attorneys or accredited representatives.
  • Non-profit organizations specializing in immigration law.

The aforementioned resources are pivotal in guiding applicants through the appeals or motions process and should be utilized for accurate and up-to-date information.