Pros and Cons of filing an I-290B Notice of Appeal or Motion vs. filing a Federal Lawsuit

As with all things in life, there are pros and cons to filing an I-290B Notice of Appeal or Motion versus filing a federal lawsuit.  For the I-290B Notice of Appeal or Motion, you have three options: (1) motion to reconsider; (2) motion to reopen; or (3) appeal.  There is an option to file a joint motion to reconsider and motion to reopen. 

Motion to reconsider: A motion to reconsider must demonstrate that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence in the case record at the time of the decision. The motion must be supported by citations to appropriate statutes, regulations, precedent decisions, or statements of USCIS policy. For the motion to reconsider, a brief must be attached and the motion must be filed within 30 days of the denial decision.

Motion to reopen: A motion to reopen must state new facts and be supported by documentary evidence demonstrating eligibility for the requested immigration benefit at the time you filed the application or petition.  For the motion to reopen, a brief and/or additional evidence must be attached and filed within 30 days of the denial decision. 

Appeal: A statement must be provided that specifically identifies an erroneous conclusion of law or fact in the decision being appealed.  This statement must be provided with the I-290B application.  However, for an appeal, a brief and/or additional evidence can be attached at the time of the I-290B filing or within 30 days of filing the appeal.  This is optional as a brief and/or additional evidence is not required.

I-290B vs. Federal Lawsuit: Factors to Consider

PROCESSING TIMES

I-290B: After filing, the processing center that originally handled the case needs to review the case within 45 days. For appeals, if the original decision is maintained, the AAO tries to reach a decision within 180 days after receipt of the appeal.  For the motions to reconsider and/or reopen, 90 days is the target date for a decision.  However, please note that these time frames are general targets for USCIS.  In general, appeals can take up to a year or longer in some instances.

Federal lawsuit: Many of the lawsuits filed in federal court resulted in voluntary approval by USCIS before a response to the lawsuit was even entered and took around two or three months. In some instances, USCIS automatically reopened the application; however, this route took several months to obtain results. In the rare instances in which USCIS decided to contest the suit in court, the processing times depended on the judge’s case schedule and often takes longer than a year.

LEGAL STATUS

I-290B: The I-290B filing does not affect one’s legal status one way or another.  For example, if you had a valid H1b and an I-140 application was denied, your legal status will continue to depend on the conditions of the H1b status should you file the I-290B to dispute the I-140 denial. However, if your status is based upon a pending I-485 application that was filed concurrently with an I-140 application, the I-290B filing only affects the I-140 application.  Thus, it is good practice to request in the I-290B filing that the I-485 application not be denied while the I-290B is pending.  However, such requests are not always honored and should USCIS issue a denial for the I-485 due to the I-140 denial, you will be unlawfully present.   In such instances, you must file another I-290B Motion to Reopen for the I-485 applications.  Please note that I-485 denials cannot be appealed; you can only file a Motion to Reopen or Motion to Reconsider.  If you begin to accumulate unlawful presence as a result of these denials, only in situations where USCIS or the AAO overturns the previous decision will the previously  accumulated days of unlawful presence be erased.  In other words, being unlawfully present in the US while the I-290B is pending can be highly risky if the I-290B results in a negative decision, given that the unlawful presence will accumulate and subject you to bars from entry to the US.

Federal lawsuit: For beneficiaries who have lost their status upon a denial from USCIS, they can apply to the federal court for a temporary restraining order (TRO) and a preliminary injunction to avoid accumulating days of unlawful presence.

COSTS

I-290B: The current filing fee is $675.  However, as mentioned above, an additional I-290B filing may be necessary (an additional $675) if a concurrently filed I-485 was denied and legal status depends on the pending I-485 application. 

Federal lawsuit: The current filing fee for filing a civil lawsuit with the federal court is $400.

SCOPE OF REVIEW

I-290B: In a motion to reconsider, the case will return to the same immigration officer that handled the matter, and the officer will re-review the submitted petition or application materials.  In a motion to reopen, new materials can be submitted to supplement the petition or application materials that have been submitted but are still sent back to the same immigration officer who made the denial decision. In an appeal, the AAO will review de novo (anew) the entire record in the USCIS filing along with any additional evidence submitted with the I-290B filing and issue a ruling based on the entirety of such evidence provided. 

Federal lawsuit: The federal court judge assigned to the matter will base his or her decision solely on the laws and administrative regulations that have been enacted and are not affected by executive orders or immigration policies/memos/guidelines.  The judge will review the evidence on record with USCIS and/or AAO in making a determination.  In other words, if the record is incomplete or additional evidence may help overturn the denial, an I-290B filing may be necessary to get such evidence in the record.  However, the neutrality of the federal courts makes it possible to obtain a more objective and fair result.

Based on the information above, there are advantages and disadvantages to both types of fighting a denial decision. In fact, in certain situations, filing an I-290B may be necessary.  To find out which option works best for your case and what strategies will optimize the chances of turning your denial into an approval, please do not hesitate to contact the Law Offices of Deacon Zhang, P.C. for an evaluation or consultation. 

As USCIS continues to make things more difficult, we continue to advocate fiercely for our clients as immigration attorneys since we recognize how important and valuable immigration is to the US.  If your case has been denied for any of the reasons listed below, please do not hesitate to contact us at info@visatopia.com

  1. H1B extension denial  (same employer, same job title, same employee);
  2. H1B transfer denial;
  3. Initial H1B denial due to level one wage issue or specialty occupation issue;
  4. L1 extension denial (due to insufficient employees or inadequate managerial duties);
  5. EB1C denial (due to organization structure and position duties);
  6. EB1A denial due to wrongful application of law (e.g. incorrect determination of validity of categories claimed and/or final merits determination);
  7. NIW denial due to wrongful application of law (e.g. wrongful determination on issues of substantial merit, national importance, and well positions to advance proposed endeavor);
  8. I-485 denial or N-400 denial due to communist party membership issue;
  9. Change of status denial due to erroneous findings of facts or wrongful application of law;
  10. EB5 denial due to job creation or source of fund issues;
  11. I-485 adjustment of status or green card application exceeding delay (more than 2 years) due to security check  or unknown reason.