How to Appeal a USCIS Denial With Form I-290B

Most USCIS petition and application denials can be challenged with Form I-290B, but you have 30 days from the date on the decision to do it, or 33 days if the decision was mailed to you, and the same form covers three different requests: an appeal to the Administrative Appeals Office, a motion to reopen, and a motion to reconsider. Choosing the right one depends on what went wrong, and the denial notice itself tells you which options are available for your form type. The first thing to do when you receive a denial is read that notice to the end.

Which USCIS denials you can appeal with Form I-290B

Form I-290B is used to appeal denials of most employment-based petitions (Form I-140 and the nonimmigrant petition Form I-129), waivers such as Forms I-601 and I-212, and many other applications within the AAO’s jurisdiction. The AAO is an office within USCIS, not a court, and it reviews the case de novo, meaning it looks at the whole record fresh rather than deferring to the officer who denied it.

Two common denials do not go to the AAO. A denied Form I-130 family petition is appealed to the Board of Immigration Appeals, on Form EOIR-29 filed with the USCIS office that issued the decision, also within 30 days. And a denied Form I-485 adjustment of status application generally cannot be appealed at all; your options are a motion to reopen or reconsider with USCIS, a new application, or renewing the application before an immigration judge if you are placed in removal proceedings. A denied N-400 naturalization application has its own route, a hearing request on Form N-336.

Our AAO and BIA appeals practice starts by matching the denial to the correct appellate body, because filing an I-290B for a decision the AAO cannot review wastes the fee and the deadline.

Appeal, motion to reopen, or motion to reconsider

The I-290B asks you to pick one. Each is a different argument.

• An appeal to the AAO argues that the decision was wrong and asks a higher body to review it. It is the right choice when the officer misapplied the law or misread the evidence and you want an independent reviewer.
• A motion to reopen asks the office that denied the case to look at new facts, supported by documentary evidence that was not previously submitted. It is the right choice when the denial rested on a gap you can now fill, such as a missing document or an event that has since occurred.
• A motion to reconsider asks the same office to correct an error of law or policy, based on the record as it stood when the decision was made. You must cite the precedent decision, statute, regulation or policy the officer misapplied.

A motion keeps the case with the deciding office and is usually faster. An appeal moves it to the AAO. Before the AAO ever sees an appeal, the office that issued the denial conducts an initial field review and may treat your appeal as a motion and reopen or approve the case itself if your arguments persuade it. That is one reason to make the appeal brief persuasive from the first page.

The deadline and the brief

The 30-day deadline (33 days if mailed) runs from the date on the decision, and USCIS must receive the form by then. There is no extension and no grace period, and a late appeal is rejected. The current filing fee is listed on the USCIS fee schedule, and fee waivers are available only for certain underlying applications, not for most employment-based petitions.

You do not need to file a full brief with the I-290B. You may submit a brief statement on the form and then file your full brief and any additional evidence within 30 days of filing the appeal, sent directly to the AAO. This split is useful when the deadline is close: file the form with a clear summary of the errors on time, then write the detailed brief. For a motion, however, the new evidence or the legal argument should be included with the form, since the deciding office will act on what is in front of it.

The brief should work through the denial point by point: quote the officer’s finding, identify the legal standard that actually applies, and show where in the record the evidence meets it. Appeals that attach the same evidence with a cover letter asking for a different result rarely succeed. The most effective appeals read like a legal memorandum, not a repeat submission.

What the AAO can decide, and how long it takes

The AAO can sustain the appeal (approve or send the case back for approval), dismiss it, or remand it to the deciding office with instructions. It can also issue a request for evidence or a notice of intent to dismiss while the appeal is pending. Most of its decisions are non-precedent, binding only on the case decided; a small number are adopted as precedent and bind USCIS officers nationally.

Processing time varies by form type and is published by the AAO; check it before filing so you can plan around it. During the appeal, the denial stands. If the denied petition supported your nonimmigrant status, you are not in status while the appeal is pending, and a departure from the United States may be necessary or advisable depending on your situation.

When a lawsuit is the better option

An I-290B is not always the strongest response. If the denial is legally wrong and you need a decision faster than the AAO can provide, a lawsuit in federal district court under the Administrative Procedure Act asks a judge to set aside the decision as arbitrary, capricious or contrary to law. Our immigration litigation practice handles those suits, and we discuss the broader strategy in what to do when your visa application is denied. In some cases, a fresh petition that cures the defect is faster than either an appeal or a lawsuit, and the three options are not mutually exclusive.

If an immigration judge rather than USCIS denied your case, the process is entirely different and runs through Form EOIR-26; see our guide to appealing an immigration judge’s decision.

If USCIS has denied your petition or application, contact Capitol Law Partners within the first week so there is time to choose between an appeal, a motion and a lawsuit before the 30 days run out. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our appeals of USCIS and immigration court decisions page or schedule a consultation.