If USCIS has denied your I-140 petition, you are undeniably asking yourself whether anything can be done to save your immigration case. In this blog, we outline the options that may be available to you after an I-140 denial.
Your next steps and legal remedies will depend on who filed the I-140 petition. If the petition was filed by your prospective or current employer, the I-140 petition belongs to the petitioning employer, and it will be up to them to decide which of the below options to pursue. If you filed an I-140 in a category that permits self-petitioning, such as EB-1A, the I-140 petition, and the decisions about what steps to take after a denial, will remain with you.
File a Motion to Reconsider or Motion to Reopen
If you have received a denial of your I-140 petition, your denial notice will advise you of your right to file a Motion to Reconsider or Motion to Reopen on Form I-290B within 33 days.
If you believe that your I-140 denial was based on an incorrect application of the law, you may submit a Motion to Reconsider. In support of your Motion to Reconsider, you should submit a legal brief, citing to the relevant authorities and explaining how the decision was legally wrong. The Motion to Reconsider is not the correct vehicle to cure a deficient filing. It is also not the time to submit new substantive evidence that should have been included with the I-140 petition at the time of filing.
A Motion to Reopen asks USCIS to reopen the case because new facts that would establish eligibility at the time of filing of the I-140 have come to light. Like the Motion to Reconsider, this is not an opportunity to merely restate the facts and arguments already included in the denied case. You must support a Motion to Reopen with evidence of new facts that show you were eligible for the I-140 classification at the time of filing.
In practice, USCIS rarely overturns its own decisions. Therefore, filing a Motion to Reconsider or Motion to Reopen is not always a wise option, especially when you consider the hefty filing fee of $675.00 and the long processing times. It often takes 6 months or more to receive a decision on a Motion to Reopen or Motion to Reconsider, and there is no Premium Processing (expedite) option associated with the I-290B.
Re-file the Case with Better Evidence
The second option to consider if your I-140 Petition has been denied is re-filing the case. When you receive a denial on your I-140, the decision includes detailed information about why your case was denied. It will discuss why evidence you submitted was not sufficient or why you are not legally eligible for the category of immigration you are seeking.
If a review of the denial with your immigration attorney reveals that you can cure the problems identified in your denial, re-fling the case may be worthwhile. Strategies involved in a re-filing case may include:
- Adding new evidence, which was not previously available, but that helps establish eligibility;
- Making legal arguments in the legal brief or attorney cover letter that directly address the points in the denial; or
- Presenting the existing evidence in a new and better light.
This re-filing of a denied I-140 petition may be better than filing a Motion to Reopen for several reasons. First, the government filing fee for refiling a Form I-140 is $700.00, which around the same amount as the $675.00 for the I-290B, the form used for a Motion to Reopen or Reconsider Second, if your I-140 petition is filed in a category that allows Premium Processing, such as EB-1A for Aliens with Extraordinary Ability, you can get a new decision in as little as 15 days.
File an Appeal of the Denied I-140 With the AAO
An alternative to the Motion to Reopen/Reconsider and the Re-filing strategies discussed above is to file an appeal with the Administrative Appeals Office (AAO). An AAO appeal is also filed on Form I-290B, and the $930.00 government filing fee applies.
The AAO conducts administrative review of certain types of immigration decisions, including most types of I-140 petitions. Before filing an appeal with the AAO, it is critical to ensure that the case qualifies for review by the AAO.
An appeal with the AAO should be accompanied by a detailed legal brief, setting forth the arguments to reverse the original decision. These arguments should be supported by citations to such authorities as the Immigration & Nationality Act, the applicable regulations, case law, and USCIS policy memoranda. Processing times at the AAO vary, according to its own published statistics, most cases receive a decision in 6 months or less.
The AAO affirms the overwhelming majority of denials that it reviews. However, every case is different and you should consult with your immigration attorney to assess your chances and develop an appeal strategy based on the individual facts of your case.
Litigate Your Denied I-140 in Federal Court
Federal litigation involves the filing of a complaint in federal district court. The complaint will typically be filed alleging violations of the Administrative Procedures Act and arguing that the decision of USCIS in your case is “arbitrary and capricious” and thus not supported by law. An attorney is not required to litigate your case in federal court, but having an attorney with experience fighting unjust denials by USCIS can be a tremendous asset.
Federal litigation is the only solution to a denied I-140 that involves the review of USCIS’s decision by an independent body. Remember, Motions to Reopen and Reconsider are reviewed by the USCIS itself, and the AAO has been part of USCIS since 2003. In federal litigation, the federal judge reviews the facts of the case and applicable law and makes an impartial determination as to whether the denial you received was supported by law.
The time to get a final decision in federal litigation of your denied I-140 varies and depends on the facts of your case and whether the government is willing to settle the claim before the case reaches trial. In some cases, where the federal court rules that the government committed an error in denying your case, you may be entitled to an award of attorney’s fees, meaning that the court would force USCIS to pay for your lawyer.
One of the primary advantages of litigating your denial in federal court lies in the fact that you do not first have to exhaust administrative remedies by first filing an appeal with the AAO. You can file your case directly in federal court, without first pursuing a Motion to Reopen, Motion to Reconsider, or AAO appeal. Strategically, many attorneys recommend going directly to federal litigation, because filing appeals with USCIS or bodies under the control of USCIS only gives the agency the opportunity to perfect its denial, diminishing your chances of success in federal court.
A Word of Caution About Maintenance of Status
None of the options discussed in this article automatically grant or extend your immigration status. As a result, even if your I-140 denial seems to merit one of these appeal options, it is important that you consult with an attorney regarding maintenance of status issues. If at the time of your I-140 denial you do not have another valid immigration status, waiting for the decision on your motion in the US can be very risky. Improper handling of this issue can result in ineligibility for a green card.
Blogs cannot be used in lieu of legal advice
This blog is for informational purposes only. It is not intended to give you any legal advice or otherwise suggest the correct course of action in your specific case. General information found on the internet does not replace legal advice from an experienced attorney. Our experienced immigration attorneys can advise you on the best options in your individual circumstances. If your I-140 was denied and you would like to discuss your options with one of our immigration attorneys, please contact us directly to schedule a consultation.