USCIS Denials, Appeals, and Motions

Most USCIS denials carry a 30-day deadline.

Bring me the denial notice. Call or text 512.761.8479.

What to Do When USCIS Denies Your Petition

A denial notice tells you the decision. It rarely tells you clearly what your options are, how strong they are, or which one fits your situation.

Most USCIS denials can be challenged. The routes are an appeal to the Administrative Appeals Office, a motion to reopen, a motion to reconsider, refiling, and in some circumstances a suit in federal court. Those options carry different deadlines, different standards, different costs, and materially different odds depending on why the case was denied.

My name is Kyle Kinzy, and I have been practicing immigration law for more than 25 years. Most of my appellate work has been in immigration, before the Administrative Appeals Office, the Board of Immigration Appeals, and the federal courts of appeals.

First Question: Does Your Appeal Go to the AAO or the BIA?

This is the most common source of confusion, and filing in the wrong place can cost the deadline outright.

The Administrative Appeals Office is part of USCIS, and it reviews denials of most petitions that USCIS adjudicates. The Board of Immigration Appeals is part of the Department of Justice. It reviews decisions of immigration judges, and it also reviews denials of family-based immigrant petitions on Form I-130.

A denied I-130 therefore goes to the BIA rather than the AAO, even though USCIS made the decision.

Matters generally within AAO jurisdiction include Form I-129 nonimmigrant worker petitions such as H-1B, L-1A, L-1B, O-1, R-1, and TN; Form I-140 immigrant worker petitions including EB-1A, EB-1B, EB-1C, EB-2, EB-2 National Interest Waiver, and EB-3; Form I-360 special immigrant petitions, including VAWA self-petitions, religious workers, and special immigrant juveniles; Forms I-526 and I-526E for EB-5 investors along with Form I-829; Forms I-601, I-601A, and I-212 for waivers and permission to reapply; Forms N-600 and N-565 for citizenship and certificate matters; Forms I-914 and I-918 for T and U nonimmigrant status; and denials or withdrawals of Temporary Protected Status.

Several matters go elsewhere. Form I-130 goes to the BIA. A denied Form N-400 goes first to an administrative hearing on Form N-336 and then to federal district court for de novo review under 8 U.S.C. § 1421(c). Form I-751 denials are generally reviewed by an immigration judge in removal proceedings, as are most adjustment of status denials where removal proceedings follow.

The Deadline Is 30 Days, With One Common Adjustment

An appeal or motion on Form I-290B must generally be filed within 30 calendar days of the decision, or within 33 days where the decision was mailed. Certain matters carry shorter windows, and revocations in particular can run as short as 15 days. Read the denial notice, because it states the period that applies. A late Form I-290B is typically rejected without anyone reaching the merits.

Appeal, Motion to Reopen, or Motion to Reconsider?

All three are filed on Form I-290B, and choosing among them is a strategic decision rather than a clerical one.

An appeal asks the AAO to review the decision for error, and it fits where USCIS applied the wrong legal standard, ignored evidence already in the record, or reached a conclusion the record does not support. A motion to reopen presents new facts supported by new documentary evidence, and it fits where you have something you did not have before. A motion to reconsider argues that the decision was legally wrong on the record as it stood, citing the statutes, regulations, or precedent decisions that were misapplied.

One structural feature deserves more attention than it usually gets. An appeal goes first to the office that issued the denial, which has roughly 60 days to treat it as a motion and reverse itself. If that office concludes it was wrong, it can grant the case without the appeal ever reaching the AAO. A brief that is built well is therefore written for that first reader as much as for the AAO.

How the AAO Reviews the Record

The AAO conducts de novo review, examining the record fresh without deference to the original officer’s conclusions. That is a meaningfully more favorable standard than the clear error review the Board applies to an immigration judge’s findings of fact.

The general burden is preponderance of the evidence, meaning more likely than not, as the AAO explained in Matter of Chawathe.

The most common reviewable error I see is not a disagreement about the evidence at all. It is an adjudicator demanding a category of documentary corroboration that the regulation does not require, and then treating its absence as a failure of proof. That is a legal error about the governing standard rather than a factual finding, which means the AAO reviews it without deference.

The AAO’s stated goal is to complete review within 180 days of receiving a complete record, although actual timing varies by case type.

Most AAO decisions are non-precedent and bind only the parties. A small number are designated precedent decisions that bind USCIS nationwide, and Matter of Dhanasar, which established the current three-prong framework for the EB-2 National Interest Waiver, is the best known recent example. USCIS also designates certain non-precedent decisions as adopted decisions, which bind agency personnel.

Where I See Reviewable Error in Employment-Based Denials

National Interest Waiver denials frequently misapply Dhanasar, most often by collapsing the second prong, which asks whether the person is well positioned to advance the proposed endeavor, into a demand for proof of past success. A related error treats the third prong as though it required evidence of a labor shortage.

EB-1A denials often collapse the two-step analysis, discounting evidence at the initial criteria stage that properly belongs in the final merits determination. O-1 denials show similar structural errors, frequently compounded by a misreading of the comparable evidence provisions.

L-1B denials commonly impose a standard closer to the extraordinary ability threshold than the regulation requires. H-1B denials often turn on the degree requirement analysis, particularly for roles that do not map onto a single named field of study.

EB-5 denials tend to center on source of funds, path of funds, or job creation methodology. Because my Texas practice also handles entity formation, real estate acquisition, and transactional work, source of funds problems can be addressed in the underlying business record rather than only in the immigration filing.

Sometimes an Appeal Is Not the Right Move

Refiling deserves serious consideration where the denial resulted from a thin or incomplete record rather than from legal error. A properly built new petition is frequently faster and more likely to succeed, particularly where the underlying facts have improved.

Federal court is available where the agency has acted arbitrarily, unlawfully withheld action, or unreasonably delayed. A suit under the Administrative Procedure Act or a mandamus action under 28 U.S.C. § 1361 is sometimes the right answer for delay rather than denial.

Naturalization follows its own track. A denied Form N-400 goes to a hearing on Form N-336 and then to federal district court for de novo review under 8 U.S.C. § 1421(c). Where USCIS has not decided within 120 days of the examination, 8 U.S.C. § 1447(b) permits going directly to district court.

I will tell you when I think an appeal is not your best option, because filing one that is unlikely to succeed costs time you may not have.

What Would Change the Analysis

The precise language of the denial, whether a request for evidence preceded it and how it was answered, what was actually in the record, your current status and its expiration, and whether removal proceedings have begun all change the recommendation. The denial notice itself is the starting point.

Frequently Asked Questions

Bring Me the Denial Notice

In one conversation I can usually tell you what went wrong, whether it is reviewable error, and whether an appeal, a motion, a refiling, or federal court is the better path.

Call or text 512.761.8479.