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Motion To Reopen or Motion To Reconsider (MTR) or Appeal to Administrative Appeals Office (AAO)

When an appeal is filed with the AAO to contest the decision of the USCIS, the agency reviews decision before it passes it onto the AAO. This takes place in about a month. Once the agency buys the arguments which are addressed in the appeal, it simply changes its decision in the form of MTR and reverses itself approving the petition. It is considered a MTR on agency's own motion and supposedly a free meal. In this case, one fee payment practically covers both MTR and AAO Appeal. It is expected that this traditional practice of the agency may continue.

What is the difference between MTR and Appeal?

While motions to reopen, motions to reconsider, and appeals are similar, there are certain differences. A motion to reopen is based on factual grounds – such as the discovery of new evidence or changed circumstances – and, therefore, the motion must "state the new facts to be proved at the reopened hearings and shall be supported by affidavits or other evidentiary material." 8 CFR § 103.5(a)(2).

A motion to reconsider, on the other hand, is based on legal grounds. It must establish that the decision was incorrect based on the evidence in the record at the time of the initial decision; and it must "state the reasons upon which the motion is based and shall be supported by …” relevant precedent decisions. 8 CFR § 103.5(a)(3).

Motions to reopen and reconsider are submitted to the same adjudicating authority that made the initial decision. An appeal is a request for review of a decision by a superior adjudicating authority. When an applicant or petitioner appeals a decision, the adjudicating officer will first review the record of proceeding to determine whether the evidence or argument submitted in support of the appeal warrants reopening or reconsidering the denial decision and approving the application or petition. If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, the case will be forwarded to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals,1 whichever has jurisdiction over the application or petition type at issue.

However, not all cases may be appealed. If the application or petition can be appealed, the appropriate appellate authority and any applicable deadlines will be provided with the denial or revocation notice. Also, with an appeal, an applicant or petitioner may be permitted additional time to submit a brief and/or supporting evidence; however, no such provision applies to motions. Any additional evidence must be submitted concurrently with the motion.

How long does it take for MTR to be processed by USCIS?

USCIS processes MTRs/Appeals on a First In First Out (FIFO) basis and can take upto 9 months to be resolved. Unfortunately, the applications are not broken down by category (Appeals Vs MTR) or by something obvious which was overlooked the first time.


Link to USCIS Ombudsman Liaison Unit FAQ

Link to USCIS I290B form

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