An I-485 denial notice explains in writing why USCIS denied the application. The regulations say that no appeal lies from the denial of an adjustment application by the director, but USCIS's Form I-290B page describes a motion with the office that made the decision, and the notice itself should say what review options exist. Motions have a short deadline: in most cases 30 calendar days from the date of service of the decision, or 33 if it was mailed. This article describes the official rules only. It does not tell you what to do in your case, and a licensed immigration attorney can explain how the rules apply to your case.
What a denial notice contains
The regulation on decisions says the officer "shall explain in writing the specific reasons for denial." For adjustment applications, 8 CFR 245.2 says the applicant must be notified of the decision and, if the application is denied, of "the reasons for the denial." The USCIS Questions and Answers page on appeals and motions adds: "Your denial or revocation notice will include information about your appeal rights."
That means the notice is the most important document you have. Read the reasons, find the date of the decision, and note any instructions about review options. Our pages on the case was denied status and the notice of intent to deny explain how those statuses appear in online accounts.
Is there an appeal?
For adjustment of status, the regulation at 8 CFR 245.2(a)(5)(ii) says: "No appeal lies from the denial of an application by the director." The same paragraph says the applicant, "if not an arriving alien, retains the right to renew his or her application in proceedings under" 8 CFR part 240, which covers removal proceedings. What that means for a specific person depends on whether they are in proceedings, and this is exactly where an attorney is needed.
USCIS's Q&A says your notice will include information about your appeal rights. Follow your notice.
Motions: reopen and reconsider
USCIS's Form I-290B page lists the uses of the form: an appeal with the Administrative Appeals Office (AAO), or a motion with the USCIS office that issued the latest decision. A motion is a request to that office to review its own decision. There are two kinds, as the USCIS Q&A page explains:
- Motion to reopen. Based on new facts. The regulation says it "must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence."
- Motion to reconsider. Based on "an incorrect application of law or policy." USCIS says new facts or evidence are not considered under this option. The regulation says it must state the reasons for reconsideration and show the decision was incorrect based on the evidence of record at the time of the initial decision.
Our page on the motion to reopen was filed status explains what that status means after one is filed.
The deadline
The I-290B page says: "you must file your appeal or motion within 30 calendar days of the date of service of the adverse decision," or within 33 calendar days if USCIS mailed the decision to you. The regulation at 8 CFR 103.5(a)(1)(i) says a motion to reconsider and a motion to reopen filed by an applicant or petitioner must each be filed within 30 days of the decision. For a motion to reopen only, it adds that failure to file before the period expires "may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner."
That late-filing language describes USCIS discretion, not a right, and the regulation does not extend it to motions to reconsider. Your notice shows the date of the decision, and an attorney can explain how the deadline applies to you.
The I-290B page does not list which benefit types a motion can be filed for. It refers readers to its "When to Use Form I-290B" page, so check that page and your notice.
Who may file
USCIS says that "Generally, only an applicant or petitioner may file an appeal or motion." Where to file is covered on the USCIS page for direct filing addresses for Form I-290B. The Q&A page also warns not to send forms or fees directly to the AAO. USCIS changes filing locations from time to time, so check that page for the current address before you file.
A motion does not stop the decision
The USCIS Q&A page says that filing a motion "does not delay any decision in your case from going into effect." If you worry about your immigration status or your work authorization, ask an attorney how a denial affects each one in your situation.
Common questions
Can I appeal an I-485 denial?
The regulation says no appeal lies from the denial of an adjustment application by the director. Your notice should explain any review options, and an attorney can explain how they apply to you.
What is the deadline for a motion?
USCIS's I-290B page says in most cases 30 calendar days from the date of service of the decision, or 33 calendar days if the decision was mailed.
What is the difference between reopening and reconsidering?
Reopening is based on new facts supported by evidence. Reconsidering is based on an incorrect application of law or policy, and new facts are not considered.
Does filing a motion pause the denial?
USCIS says that filing a motion does not delay any decision in your case from going into effect.
Questions to bring to an attorney
- Does my notice say I can appeal or file a motion, and by what exact date?
- Am I in removal proceedings, and how does that change the options in 8 CFR 245.2?
- Would a motion to reopen, a motion to reconsider, or neither match the reasons stated in my notice?
- How does this denial affect my current status and work authorization?
Official sources
- USCIS: Form I-290B, Notice of Appeal or Motion
- USCIS: Questions and Answers: Appeals and Motions
- eCFR: 8 CFR 103.5 (Reopening or reconsideration)
- eCFR: 8 CFR 103.3 (Denials, appeals, and certifications)
- eCFR: 8 CFR 245.2 (Adjustment of status procedures)
GreenLight is not affiliated with USCIS or the U.S. government. This article is for informational purposes only and does not constitute legal advice.