Motion to Reopen or Reconsider After a USCIS Denial

After reviewing a petition or application (“benefit request”), U.S. Citizenship and Immigration Services (“USCIS”) may deny the benefit request. When USCIS denies a benefit request, the agency sends a decision to the petitioner or the applicant. The decision explains the facts and legal provisions causing USCIS to deny the benefit request. If a person receives a denial from USCIS, an applicant may file a motion to reopen or reconsider.

Why Does USCIS Deny Petitions or Applications?

USCIS may deny a benefit request because the agency found a procedural problem or an inadmissibility issue. USCIS may deny some benefit requests in its discretion. For example, some regulations give discretion to the agency to deny a benefit request even when the applicant satisfies the legal criteria.   

What Is a Motion to Reopen?

After USCIS denies a benefit request, a motion to reopen asks USCIS to withdraw its decision and reconsider the denied application and evidence. Filing a motion to reopen allows a petitioner or applicant to present new evidence for USCIS’s review. For example, a petitioner or applicant may provide documents to USCIS when she or he did not provide the evidence in response to a request for evidence or notice of intent to deny.

What Is a Motion to Reconsider?

USCIS reviews applications and follows complicated regulations and policy. As human beings, immigration officers make mistakes when interpreting the law and applying the law to the facts. If an agency incorrectly denies a benefit request, a motion to reconsider explains how the agency improperly applied the law to the evidence.   

Can an Applicant File a Motion to Reopen or Reconsider at Any Time?

No. An applicant or petitioner must file a motion to reopen or reconsider within 30 days following the date USCIS issued the decision. USCIS may exercise discretion and accept an untimely-filed motion if the applicant proves that a legitimate reason or uncontrollable circumstance caused the delay. During the COVID-19 pandemic, USCIS extended the deadline to file motions from 30 days to 60 days.

Does A Motion to Reopen or Reconsider Allow a Foreign National to Stay Longer in the U.S.?

USCIS must comply with legal regulations. According to regulation, filing a motion to reopen or reconsider does not “extend a previously set departure date” unless the agency authorizes an extension. See 8 C.F.R. § 103.5(a)(1)(iv).