Motion to Reopen or Reconsider

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If you are following immigration news, you can see that immigration in the U.S. has become more and more challenging in recent times.  Requests for Evidence (“RFE”), Notices of Intent to Deny (“NOID”), and Denials have all increased across the board. In particular, H-1B cases has seen a dramatic increase in RFEs and NOIDs, leading to a higher number of denials as compared to past years. Such a trend can be discouraging, frustrating, as well as costly. 

The first step after receiving a denial notice is to understand the exact reason for the denial. USCIS officer relies on a standard denial templates, and its not uncommon to find that USCIS have issued decisions with little or no explanation as to exact or specific reasons for the denials. Common denial reasons are specialty occupation, end client documentation, availability of work at the end client location, right to control and education qualifications of the beneficiary, among others. 

In order to challenge USCIS’s decision, Petitioner has an option to file a Motion to Reopen or Motion to Reconsider (“MTR) to challenge that decision. Motion to Reopen is filed on the basis of factual grounds, such as the discovery of new evidence or changed circumstances supported by other documentary evidence(s), whereas Motion to Reconsider must establish that the decision was incorrect based on the evidence of record at the time of the that decision or that it was supported by any pertinent precedent to establish that the decision was based on an incorrect application of law or USCIS Policy. Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider. Petitioner can file both Motion to Reopen and Motion to Reconsider together. If the decision is reopened, the underlying case is returned to pending status and the USCIS issues a second decision on the case. If the USCIS favorably reconsiders, this results in an approval of the case that was previously denied.

In April 2019, we filed an H-1B petition for one of our employee under the annual cap. It was picked in the lottery and eventually we received an RFE on “Specialty Occupation in Third Party Worksite.” After submitting all the required documents, namely, Client Letter with a project duration of 36+ months, Vendor letter and Agreements between all the parties involved in placement of the beneficiary at the client’s site, USCIS denied his case, on the basis of short term on the Statement of Work which was submitted at the time of initial filing.  Unsatisfied with the denial, we decided to submit MTR on August 29, 2019 to USCIS. We supplemented the petition with updated Statement of work with an extension of 6 months on September 30, 2019 USCIS approved his H-1B petition till December 2019. This is an example of a favorable decision amongst many still pending MTR cases with USCIS. At the end, it is on the discretion of the Adjudicating officer to either change previously given adverse decision or not.

MTR should be filed within 30 days or 33 days, if the decision was mailed by USCIS, from the date of the decision and not from the date the denial notice was received. It is important to note that filing an MTR or Appeal does not allow a foreign national to remain in the United States legally and continue to work while the motion or appeal is pending. As per the regulations, filing MTR does not stop the impact of a denial decision. If the MTR is ultimately successful and the H-1B case is finally approved, then the situation will be resolved as if there had not been a denial. But, unless and until that happens, the H-1B case is still considered as having been denied. 

Beneficiaries applying for their first H-1B under the annual cap (lottery) are often on F-1 student, L-1 or L-2/H-4 dependent status and may be able to independently continue to remain in the U.S. even after the denial but beneficiaries seeking extension, amendment or transfer on H-1B certainly can and should consider filing an MTR. In case of H-1B extension, denial decision leaves the beneficiary out of status if the denial is issued after I-94 have expired. Due to the prolonged processing time there is a faster alternative to resolve the issue caused by the denial. In this particular case, since beneficiary has already been counted under the H-1B cap is, therefore, cap-exempt from subsequent filings. An MTR can take easily between 3-6 months sometimes even more than this while refilling of an H-1B petition can take 15 days for a decision when petition is filed in premium processing. Thus, H-1B employer or another petitioner should reconsider re-submitting the H-1B petition to USCIS in addition to the MTR, so that beneficiary will not suffer due to the decision of USCIS. 

ABOUT AUTHORS : Anurag Lavania, the author of this blog, has brought his voice based on his work experience, while Ayushi Nigam volunteered to validate the information presented here.

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