Form I-290B: Appeal, Motion to Reopen, Motion to Reconsider
The form that comes with a denial notice is called Form I-290B, Notice of Appeal or Motion. It opens by asking you to pick one of two things:
- An appeal with the Administrative Appeals Office (AAO)
- A motion with the USCIS office that issued the latest decision in your case
Option 1 is the appeal described below — the case goes to a body outside the office that decided it. Option 2 is a motion, which sends the case back to the office that issued the denial so it can look at its own decision again; that option splits further into a Motion to Reopen and a Motion to Reconsider. So one form covers three different actions.
This page covers only the three actions themselves: what each one requires, where filings go wrong, and where the case ends up after each is filed.
IMPORTANT
Which action to file is a determination a licensed attorney makes in writing. This page exists so the client and the internal team can follow that determination — not as a basis for deciding on your own. All three actions draw on the same single 30-day window. Picking the wrong one cannot be undone.
Appeal to the AAO
When it applies
- You believe the decision itself is wrong — the officer erred in finding the facts or in applying the law, rather than the record having a gap in it.
- What an appeal challenges is the officer's judgment, so what you need is an argument, not new material. Evidence that should have been filed at the time but wasn't belongs in a motion to reopen.
- It is filed by the affected party. On an H1b, the affected party is the company as petitioner; the beneficiary is not eligible to file.
- It is due within 30 calendar days of the date the decision was issued. If the decision was served by mail, add 3 days, for 33 total. What counts is the date USCIS receives the filing, not the date you mail it.
What to watch out for
- Do not check both Appeal and Motion. This is one of the most common filing errors on an I-290B, and it leads to rejection or to the filing being treated as whichever one USCIS chooses.
- A late appeal cannot be salvaged. It will be rejected as untimely. Under 8 CFR 103.3(a)(2)(v)(B) USCIS may treat an untimely appeal as a motion, but that is USCIS's discretion, not the filer's right, and it is not a fallback plan.
- The form lets you check a box to submit a brief and/or additional evidence within 30 calendar days of filing. Filing first to preserve the deadline and supplying the brief afterwards is standard practice when time is short — but if you check the box, the brief must actually arrive within those 30 days.
- Prepare the appeal as if the goal were to persuade the original office to reverse itself. The next section explains why.
What happens after filing
An appeal does not go straight to the AAO. It passes through two stages:
- Initial field review. Under 8 CFR 103.3(a)(2)(ii), the filing goes first to the office that issued the denial. If that office concludes its own decision was wrong, it treats the appeal as a motion and takes favorable action directly — the case turns around here and never reaches the AAO. This is the fastest and most realistic window in the whole process.
- Forwarded to the AAO. If the original office stands by its decision, the record goes to the AAO. The AAO's stated goal is to complete review within 180 days of receiving the complete record. That is a goal, not a promise; actual timelines can run longer.
The AAO typically dismisses the appeal (leaving the denial in place), sustains it (withdrawing the decision), or remands the case to the original office. The overwhelming majority of AAO decisions are non-precedent decisions: they bind only that case and cannot be used to predict the outcome of similar ones.
Motion to Reopen
When it applies
- You have new facts, and those new facts are supported by documentary evidence.
- "New" means material that was missed, could not be produced in time, or came into existence after the decision. Reorganizing and re-filing material already in the record does not constitute a new fact.
- It is filed with the USCIS office that issued the decision — a field office, a service center, or the AAO, depending on who issued the most recent decision in the case.
- Same deadline as an appeal: 30 days, plus 3 if the decision was served by mail.
What to watch out for
- Statements alone do not count. A motion must be supported by documentary evidence; an after-the-fact explanation on its own is not a new fact.
- Explain, for each new item, why it was not submitted at the time. Without that, even genuinely new material is easily found insufficient to warrant reopening.
- There is one very narrow exception to the deadline. Under 8 CFR 103.5(a)(1)(i), USCIS may excuse a late filing where the delay was reasonable and beyond the control of the filer. Note that it says may.
WARNING
The only thing that supports that exception is a record of service. If the decision actually arrived well after the date printed on it, keep the envelope, the postmark, and the tracking number from the day it arrives. None of it can be reconstructed later.
What happens after filing
The original office looks at the case again. If the motion is granted, the case returns to adjudication — reopening is not approval. The petition can be denied a second time; it simply has to be decided against the new evidence this time. If the motion is denied, the office issues a new written decision explaining why the material does not warrant reopening.
Motion to Reconsider
When it applies
- The record is fine; the rule was applied incorrectly. The decision misapplied law, regulation, or policy, and on the record as it stood when the decision was made, the correct application would have produced a different result.
- It must cite specific authority: a statute, a regulation, a provision of the USCIS Policy Manual, or relevant precedent. Identify which rule was misapplied and what the correct application would be.
- Filed with the same office that issued the decision, on the same 30-day (plus 3) deadline.
What to watch out for
- A motion to reconsider is not a way to file new evidence. Reconsideration looks at the record as it existed when the decision was made; new material requires a motion to reopen. Confusing the two is a common reason motions are dismissed outright.
- "We disagree with the conclusion" is not a ground. An objection with no provision or precedent behind it is not reconsideration.
- When a denial comes out of a top-down shift in policy rather than one officer's misreading of a rule, there is little for a motion to reconsider to grip — the officer was applying exactly the new policy.
What happens after filing
The original office revisits its own application of the law. The result is either that the decision stands (the motion is denied) or that it is withdrawn and a new decision issued. As with a motion to reopen, a denied motion comes with a new written decision.
Reopen and reconsider can be filed together; an appeal cannot be combined with either
Reopen and reconsider are not mutually exclusive. Both can be raised on the same I-290B: here is evidence that was not in the record, and the decision misapplied the rule.
Appeal and motion, however, are the two mutually exclusive options at the top of the form. Do not check both.
NOTE
"MTR" in internal shorthand covers Motion to Reopen / Reconsider collectively. It is not a distinct third action. Write the full name in client-facing correspondence so it is not confused with the abbreviations used in the RFE process.
What all three have in common
Whichever action is filed, the filing itself does not change the beneficiary's current status or ability to work.
Filing an appeal or a motion does none of the following
- It does not stay the denial (8 CFR 103.5(a)(1)(iv): the filing of a motion does not stay the execution of any decision)
- It does not restore or extend lawful status
- It does not restore work authorization — working after a denial takes effect is unauthorized employment
- It does not stop the accrual of unlawful presence
For a denied extension, that means the beneficiary has been out of status since the date of denial. The fact that an appeal is pending is not, by itself, a basis for remaining in the United States or continuing to work. Whether and when to depart is a separate decision that has to be evaluated on its own, on the written advice of a licensed attorney.
The cost of picking the wrong one
All three actions draw on the same 30-day window and the same filing fee. Picking the wrong one spends the single available opportunity on the wrong target:
- Filing an appeal when the case called for a motion to reopen — the AAO reviews whether the decision was correct; new evidence has no place in that proceeding.
- Filing a motion to reconsider when the case called for an appeal — you are asking an office that has already decided to restate its own conclusion.
- Filing a motion to reconsider when you have new evidence — reconsideration does not examine new material, and the motion is dismissed.
By the time the mistake is visible, the 30-day window is usually gone, and there is no second attempt. That is why choosing between appeal and motion has to be settled in writing before anyone starts filling in the form.