You received a denial notice from USCIS. The question most people ask first is whether it is over. Often, it is not — but the answer depends on why the agency denied the case and whether you act quickly. Federal regulations give applicants two formal mechanisms to challenge an unfavorable USCIS decision without starting from scratch: a motion to reopen and a motion to reconsider. Understanding the difference, and knowing which one applies to your situation, is the first step toward getting the right outcome.
The first thing I tell anyone who contacts me after a denial: send me the denial notice. The notice itself tells me whether the problem is fixable. From there, we can talk about options. What I cannot do is help you if you wait.
What Is a Motion to Reopen?
A motion to reopen asks USCIS to revisit its decision based on new facts supported by documentary evidence. The motion does not argue that USCIS applied the law incorrectly. It argues that there is material new evidence the agency did not have before it that changes the outcome — or, in some cases, that the record was not properly considered.
A common scenario: a person tries to handle their own marriage-based green card adjustment of status without an attorney. USCIS issues a Request for Evidence — an RFE — asking for documentation to support the I-864 Affidavit of Financial Support. The person does not fully understand what is being asked. They send the wrong documents. USCIS denies the case.
If that person contacts me within 30 days of the denial, I can usually fix this. We file a motion to reopen on Form I-290B, accompany it with a corrected and complete I-864 package, and give USCIS exactly what it originally asked for. The motion also allows us to include a brief explaining why the evidence satisfies the requirements. This is one of the most common motions I handle, and when done correctly and timely, it succeeds.
What Is a Motion to Reconsider?
A motion to reconsider is a different animal. It does not introduce new evidence. Instead, it argues that USCIS made a legal error — that the agency misapplied the law, the regulations, or its own policy in reaching its conclusion. A motion to reconsider must identify the specific provision of law or policy that was incorrectly applied and explain why the correct application would lead to a different result.
Motions to reconsider are harder to win than motions to reopen because you are, in effect, telling the agency it was wrong on the law. That argument has to be precise. Vague complaints about unfairness do not qualify as a motion to reconsider. Specific citations to the INA, the CFR, or the USCIS Policy Manual that demonstrate a clear legal error — those qualify.
The Mechanics: I-290B, Deadlines, and Fees
Both motions are filed on Form I-290B, Notice of Appeal or Motion. You can file a motion to reopen, a motion to reconsider, or both simultaneously on the same form.
The filing fee for Form I-290B is currently $675. There is one significant exception: when USCIS itself initiates a reopening — called a sua sponte or Service motion, discussed below — no fee is required.
The 30-Day Deadline (33 Days by Mail)
This deadline matters more than almost anything else. Under 8 CFR § 103.5, a motion to reopen or reconsider must generally be filed within 30 days of the decision. If the decision was served by mail, you get 33 days.
Thirty days sounds like a lot. It is not. If you receive a denial notice, do not set it aside and plan to deal with it later. The time needed to gather corrected documents, prepare a brief, and file correctly can consume most of that window. Contact an immigration attorney immediately.
What You Can Include
A motion to reopen may be accompanied by:
- A brief explaining the basis for the motion
- New or corrected documentary evidence not previously in the record
- A declaration or affidavit from the applicant or other relevant parties
A motion to reconsider must be accompanied by:
- A brief that specifically identifies the legal error
- Citation to the applicable statute, regulation, or policy provision
- An explanation of why the correct legal analysis produces a different result
When a Case Is Not Fixable
Not every denial can be addressed with a motion. Some denials reflect a fundamental problem that no additional evidence or legal argument will cure — because the underlying eligibility requirement simply was not met at the time of filing.
One example that stays with me: I was contacted by someone who had filed their own naturalization application but filed it approximately one week before they were actually eligible. USCIS denied the case for premature filing. There was nothing to fix. The continuous residence and physical presence clocks had not run. No motion to reopen could change that fact, because the fact was accurate.
These are hard conversations. Clients are disappointed — understandably — after investing time, effort, and money in an application. But the realistic answer is also the useful one: you need to file again when you are eligible, and this time, do it correctly. Some clients hire me to handle the refiling. Others take what they learned and do it themselves. Either way, the path forward is clear.
The denial notice usually tells me which situation we are in. A denial based on a fixable procedural problem looks different from one based on a fundamental eligibility failure. If you are not sure which you are looking at, that is precisely why you send the notice to an attorney before the clock runs out.
Who Pays the Filing Fee?
When the motion is required because the applicant made an error — a missing document, an incorrect form, a mistaken election — the applicant pays the I-290B filing fee. There is no exception to this. The government made no mistake; the cost of correcting the applicant’s error falls on the applicant.
The calculation is straightforward: the cost of the motion, plus attorney fees if you hire counsel, versus the cost of starting over and paying a new filing fee on top of everything else. In most cases, a successful motion is considerably less expensive than refiling from scratch — and it avoids the additional wait time.
Service Motions: When USCIS Gets It Wrong
There is a third category that is worth understanding. Under 8 CFR § 103.5(a)(5)(i), USCIS has the authority to reopen or reconsider a case on its own initiative — without a request from the applicant. This is called a sua sponte motion or a Service motion.
Service motions most commonly arise when a denial resulted from agency error rather than any deficiency in the application. They require no filing fee. For a detailed example of how a Service motion works in practice — including a case where USCIS scheduled an interview over a thousand miles from where the applicant lived because the agency failed to process a change of address — see our article You Moved. You Told USCIS. They Denied You Anyway..
Strategic Considerations
A few practical notes from years of motions practice:
The denial notice is the document that tells the story. Before any analysis, any strategy, any decision about whether to file — I need to see the denial notice. It specifies the basis for the denial. It tells me whether the problem is legal or factual, whether it is fixable, and what evidence or argument the motion would need to succeed.
A motion is not a chance to relitigate everything. It is a precisely targeted response to the specific basis for denial. Motions that address every possible issue at length tend to dilute the strongest arguments. The most effective motions are focused.
If you are within the 30-day window and you believe your denial was wrong — or if you are not sure — the most important thing you can do right now is contact an attorney who handles motions practice. The deadline will not extend because the situation is complicated.
Immigration Law of Montana has handled motions to reopen and reconsider across multiple USCIS field offices. If your case has been denied, contact our office for a consultation. The denial notice tells us where things stand; from there, we can tell you whether — and how — to respond.
