Do You Have a Case for an I-290B Appeal?

If a petition or application you filed with U.S. Citizenship and Immigration Services (USCIS) or the Department of Labor (DOL) is denied or revoked after a previous approval, you have the opportunity to file an I-290B, Notice of Appeal or Motion -- with one exception. In cases where the Board of Immigration Appeals has jurisdiction, such as petitions denied by an immigration judge during deportation or removal proceedings, the person cannot file an I-290B appeal. 

Form I-290B is used to notify USCIS that you are either:

1. appealing a decision with the Administrative Appeals Office (AAO)
2. filing a motion to reconsider a decision made by USCIS, or
3. filing a motion to reopen a decision made by USCIS, including one filed under the Northwest Immigration Rights Project (NWIRP) Settlement or the Special Immigrant Juvenile (SIJ) Perez-Olano Settlement Agreement (POSA).

Who Should Sign the Form?

The most likely person to sign Form I-290B is the person who filed the initial petition or application (the petitioner or applicant). It can also be signed by an authorized official of a petitioning employer, or by the petitioner’s attorney or authorized representative.  The beneficiary of a petition may sign only in cases where the petitioner is also the beneficiary (a self-petitioner), such as for some waiver applications and certain employment-based immigrant petitions.

How Do I File Form I-290B?

That is a good question, because filing your appeal or motion can be trickier than it sounds. It seems easy enough -- you just mail in the form, right? That is only the beginning. You must prepare your I-290-B very carefully, because if the form is not properly executed and filed, and sent within the allotted time, you may lose your opportunity to file an appeal or motion altogether. To successfully file your form, you must:

1.     Complete Parts 1 through 4 of Form I-290B:

• Part 1:   Information about the petitioner/applicant
• Part 2:   Information about the appeal or motion (Whether it is an appeal or a motion and what type of motion)
• Part 3:   The basis for the motion
• Part 4:   Your signature and date.

2.     Attach a check or money order for the appropriate filing fee (checks must draw on a U.S. bank); and

3.     File the form within the time specified on the denial or revocation:

• If your appeal or motion is based on a denial, your form must be properly completed and received by the USCIS within 30 days from the date of the decision, or within 33 days if the decision was mailed to you.
• If your motion involves a revocation of a previously approved petition, the form must be received by the USCIS within 15 days, or 18 days if the notice was mailed to you. 

If you do not file your form on time, you must present evidence of very good cause, such as a death or serious illness, or the appeal or motion may be rejected and the previous decision will become final. It is not enough that a form be post-marked by the U.S. Postal Service by the deadline -- it must be received by USCIS.

If That Is Just the Start, What Is Next? 

In addition to filing your form, you must present evidence and/or sworn affidavits to support your contention that the appeal or motion should be granted. Although it is not required, you should also submit a “case brief,” thoroughly outlining your case and the applicable laws. Therefore, it is necessary to have a well thought-out strategy, which depends on the basis for your filing in Part 3 of the form. 

What Are My Chances of Winning an Appeal or Motion?

It is very difficult to determine whether you will win an appeal or a motion, particularly without a thorough examination of the evidence and the immigration laws pertaining to that particular petition. Remember, you are dealing with a government agency and your appeal or motion must convince a higher authority within the same agency that its counterpart made a mistake. 

Does this mean you can’t win? No. However, in many cases, simply filing a new petition that sufficiently addresses the deficiencies brought up in the first denial may be more effective, and faster, than filing an appeal or motion. 

If this all seems a bit overwhelming, that is certainly understandable. Immigration laws are very complex and applying them properly is the key to overcoming a denial (as well as to preventing a denial) in an initial petition/application. 

Whatever you believe to be the reason your case was improperly denied or your approval revoked, the best way to build the strongest case for your appeal or motion, or to determine whether you should simply file a new case, is to consult an immigration attorney to evaluate the evidence, the regulations, and the basis for the denial.  Doing so could also save you a lot of money by avoiding multiple filing fees, which are continually increasing, and will significantly increase your chances of success.