INTERIM MEMO FOR COMMENT
Posted:
U.S. Citizenship and Immigration Services
Office of the Director (MS 2000)
Washington, DC 20529-2000
01-31-2011
Comment period ends: 02-14-2011
This memo is in effect until further notice.
January 26, 2011
PM-602-0028
Policy Memorandum
M
em
o
SUBJECT: Notice to Applicants and Petitioners Concerning Ability to File Motions to Reopen
or Reconsider; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 10.7;
AFM Update AD11-09
Purpose
This memorandum documents USCIS policy for including information about the opportunity to
file a motion to reopen or reconsider when issuing a written denial of a petition or application.
rim
Background
8 CFR 103.3(a)(1)(iii) requires that USCIS’s written denial of a petition or application include
information about whether the petitioner or applicant can appeal the decision. When available,
petitioners and applicants may also file motions under 8 CFR 103.5 to reopen or reconsider an
adverse decision made by USCIS. Although not required by law or regulation, USCIS has
determined that written decisions should also include information about the opportunity to file
these motions.
te
Guidance
Any written decision denying a petition or application will advise the petitioner or applicant:
Whether the petitioner or applicant may appeal the decision to the Board of Immigration
In
Appeals or the Administrative Appeals Office (and will include the proper appeal form, if the
decision is appealable); and
1
If available , that the petitioner or applicant may file a motion to reopen, a motion to
reconsider, or both, within the period specified in 8 CFR 103.5(a) (and will include Form
I-290B).
1
For example, the formal right to appeal a denial is not available for refugee status adjudications. But as a matter of
policy, USCIS allows the refugee applicant to submit a Request for Review of a denial and provides information
about this option to the applicant in the decision notice.
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 2
Implementation
The AFM is amended as follows:
1. Chapter 10.7(b)(5) is revised to read:
****
(b) ****
(5) A conclusion that informs the applicant or petitioner of the decision to deny and
of the reason(s) for it. The decision must inform the petitioner or applicant:
Of the opportunity to file a motion to reopen or reconsider, as specified in 8 CFR
103.5(a) (including separately the deadlines for motions to reopen and motions to
reconsider); and,
If the petitioner or applicant is entitled to appeal the decision to the BIA or AAO,
of the opportunity to do so (including the deadline established by regulation for
filing an appeal).
M
em
o
rim
A Form I-290B must be included with any denial. If the BIA has jurisdiction to
adjudicate an appeal, EOIR Form EOIR-29 must also be included with the decision.
The decision should state whether it is with or without prejudice to any other benefits
that the individual is seeking or likely to seek.
(b) * * *
In
****
te
2. The second paragraph of Chapter 20.3(b)(2) is revised to read:
(2) Final Decision.
***
If the petitioner does not overcome the basis for the revocation, or fails to respond
timely, prepare a decision of revocation. A petitioner may file an appeal on a
decision to revoke a petition just as if the petition had been denied originally, except
that the authorized period for filing the appeal is only 15 days regardless of the type
of petition. A petitioner may also file a motion to reopen or reconsider the decision
revoking the decision. As required in Chapter 10.7(b)(5) of this manual, the
revocation decision must include information about appeal rights and the opportunity
to file a motion to reopen or reconsider.
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 3
***
3. Chapter 21.2(f)(3)(E) is revised to read:
***
(E) Administrative Appeals of Denied or Revoked Petitions. Traditionally, the
denial or revocation of Form I-130 and Form I-360 (in specified cases) has been
subject to appeal to the Board of Immigration Appeals (BIA). See 8 CFR
1003.1(b)(5).
M
em
o
The denial or revocation of orphan (Forms I-600 and I-600A) and fiancé(e) (Form
I-129F) cases may be appealed to the Administrative Appeals Office (AAO). As
required in Chapter 10.7(b)(5) of this manual, a decision denying or revoking
approval of a Form I-600 or Form I-600A must include information about appeal
rights and the opportunity to file a motion to reopen or reconsider.
***
***
(2) Denials.
rim
4. Chapter 21.2(g)(2) is revised by adding a new paragraph at the end to read:
In
te
***
Notify the petitioner in writing of the decision and the right to appeal. As required
in Chapter 10.7(b)(5) of this manual, the decision must include information about
appeal rights and the opportunity to file a motion to reopen or reconsider.
5. Chapter 21.2(h)(2)(F) is revised to read:
***
(F) Appeal Rights. As required in Chapter 10.7(b)(5) of this manual, the decision
must include information about appeal rights and the opportunity to file a motion
to reopen or reconsider. The petitioner has the same appeal rights from a
decision to revoke upon notice as he or she would have from a decision to deny
the petition. If a denial of the petition would be appealable to the BIA on Form
EOIR-29, so is the revocation; if it would be appealable to the AAO on Form
I-290B, so is the revocation. The petitioner also has a right to file a motion to
reopen or reconsider the decision revoking the petition approval.
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 4
6. Section (b)(6)(B) of Chapter 21.3 is revised to read:
***
(B) Denial. If the petition is denied, notify the widow(er) in writing of the reasons
for the denial. As required in Chapter 10.7(b)(5) of this manual, the decision
must include information about appeal rights and the opportunity to file a motion
to reopen or reconsider.
7. Chapter 21.4(f)(A) is revised to read:
o
***
M
em
(A) Denial. If the petitioner fails to establish eligibility for the benefit sought, the
adjudicating officer shall deny the petition and notify the petitioner in writing of the
reasons. As required in Chapter 10.7(b)(5) of this manual, the decision must
include information about appeal rights and the opportunity to file a motion to
reopen or reconsider.
***
***
rim
8. Section (e)(2) and the first paragraph of section (e)(3) of Chapter 21.5 are revised to
read:
In
te
(2) Denials. If the Form I-600 cannot be approved, the adjudicating officer shall
deny the petition and notify the petitioner of the reasons in writing. Pursuant to 8
CFR 103.2(b)(16), a notice of intent to deny is not required unless the intended
denial is based upon information or evidence of which the petitioner is unaware. As
required in Chapter 10.7(b)(5) of this manual, the decision must include information
about appeal rights and the opportunity to file a motion to reopen or reconsider.
(3) Revocations. If the Department of State returns an approved Form I-600 for
possible revocation following a Form I-604 determination, follow the applicable
provisions of 8 CFR 205.2 regarding notice of intent to revoke and revocation. As
required in Chapter 10.7(b)(5) of this manual, any decision revoking approval must
include information about appeal rights and the opportunity to file a motion to reopen
or reconsider. Remember, however, that the return of a case by the Department of
State for possible revocation is only a recommendation.
***
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 5
9. Chapter 21.7(d)(7)(A) is amended to read as follows:
***
(A) Denial. If the petitioner fails to establish eligibility for the benefit sought, the
adjudicating officer shall deny the petition and notify the petitioner of the reasons
in writing. As required in Chapter 10.7(b)(5) of this manual, the decision must
include information about appeal rights and the opportunity to file a motion to
reopen or reconsider.
***
o
10. Paragraph (4)(B) of Chapter 21.8(c) is revised to read:
M
em
***
(B) Denial. If the petitioner fails to establish eligibility for the benefit sought, the
adjudicating officer shall deny the petition and notify the petitioner of the reasons
in writing. As required in Chapter 10.7(b)(5) of this manual, the decision must
include information about appeal rights and the opportunity to file a motion to
reopen or reconsider.
rim
***
11. Paragraph (4)(B) of Chapter 21.9(c) is revised to read:
te
***
In
(B) Denial. If the petitioner fails to establish eligibility for the benefit sought, the
adjudicating officer shall deny the petition and notify the petitioner of the reasons
in writing. As required in Chapter 10.7(b)(5) of this manual, the decision must
include information about appeal rights and the opportunity to file a motion to
reopen or reconsider.
***
12. Section (e)(2) of Chapter 21.10 is revised to read:
***
(2) Denial. If the petitioner fails to establish eligibility for the benefit sought, the
adjudicating officer shall deny the petition and notify the petitioner of the reasons in
writing. There is no appeal from the denial of an I-730 petition. As required in
Chapter 10.7(b)(5) of this manual, the decision must include information about the
opportunity to file a motion to reopen or reconsider.
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 6
***
13. The final paragraph of Section (j)(4) of Chapter 22.2 is revised to read:
***
(4) National Interest Waiver of Job Offer.
***
M
em
o
When a petition is denied because eligibility for the national interest waiver has not
been established, the decision must include information about appeal rights and the
opportunity to file a motion to reopen or reconsider, as required in Chapter
10.7(b)(5) of this manual.
***
14. The first paragraph of Section (l)(2) of Chapter 22.2 is revised to read:
***
In
te
rim
(2) Denial of Petitions. The denial should be written in clear and comprehensive
language, and all grounds for denial should be covered. Refer in your denial to the
controlling statute or regulations and to any relevant precedent decisions. As
required in Chapter 10.7(b)(5) of this manual, the decision must include information
about appeal rights and the opportunity to file a motion to reopen or reconsider. The
denial decision may be appealed to the Administrative Appeals Office (AAO). The
denied petition should then be held locally until the time period for an appeal or
motion has passed.
Note: A petitioner may not appeal a denial decision that is based upon lack of labor
certification. A petitioner may appeal a case that is denied because the alien does
not qualify for the Schedule A designation or for the waiver of the job offer in the
national interest, or because you determine that a successor in interest does not
exist.
***
15. The second bullet of Section (b)(10) and paragraph (B) of Section (r)(3) of Chapter
22.3 are revised to read:
***
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 7
(10) Closing Actions.
***
Denial. Using a properly issued denial stamp and security ink, the adjudicator
stamps “denied” in the Action Block on the petition and signs the form on a line
over the stamp number and below the date of the denial. If the petition is denied,
the petitioner shall be informed of the reasons for denial. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal
rights and the opportunity to file a motion to reopen or reconsider. The denial
may be appealed to the Administrative Appeals Office.
M
em
o
***
(r) U.S. Armed Forces Members.
***
(3) Closing Action.
***
***
te
rim
(B) Denial. If the petitioner has failed to establish eligibility for the benefit sought,
deny the petition, and prepare a formal decision to inform the petitioner of the
reasons for denial. As required in Chapter 10.7(b)(5) of this manual, the
decision must include information about appeal rights and the opportunity to file a
motion to reopen or reconsider. The denial is appealable to the Administrative
Appeals Office.
***
In
16. Section (e)(2) of Chapter 31.3 is revised to read:
(2) Denial. Prepare a notice of denial, also on Form I-797. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights
and the opportunity to file a motion to reopen or reconsider. Retain the file, in
accordance with local procedures, until the appeal period expires or the appeal is
received.
***
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 8
17. The first paragraph (but not the Note) of Section (i)(2) of Chapter 31.4 is revised to
read:
***
(2) Denial. Prepare a notice of denial. As required in Chapter 10.7(b)(5) of this
manual, the decision must include information about appeal rights and the
opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
the appeal. Retain the file, in accordance with local procedures, until the appeal
period expires or an appeal is received.
o
***
18. The first paragraph (but not the Note) of Section (h)(2) of Chapter 31.5 is revised to
M
em
read:
***
***
rim
(2) Denial. Prepare a notice of denial. As required in Chapter 10.7(b)(5) of this
manual, the decision must include information about appeal rights and the
opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
the appeal. Retain the file, in accordance with local procedures, until the appeal
period expires or an appeal is received.
In
***
te
19. Section (c)(2) of Chapter 31.6 is revised to read:
(2) Denial. Prepare a notice of denial, also on Form I-797. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights
and the opportunity to file a motion to reopen or reconsider. The AAO has
jurisdiction over the appeal. Retain the file, in accordance with local procedures,
until the appeal period expires or the appeal is received.
***
20. Section (b)(2) of Chapter 31.7 is revised to read:
***
(2) Denial. Prepare a notice of denial, also on Form I-797. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 9
and the opportunity to file a motion to reopen or reconsider. The AAO has
jurisdiction over the appeal. Retain the file, in accordance with local procedures,
until the appeal period expires or the appeal is received.
***
21. The first paragraph of Section (f) (but not the Note) of Chapter 33.4 is revised to
read:
***
M
em
o
(f) Denial. The petitioner will be notified of a denial on Form I-797, with attachments as
necessary, which will set forth the reasons for the denial. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights and
the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
the appeal. There is no appeal from a decision to deny an extension of stay to the
alien.
***
22. The first paragraph of Section (f) (but not the Note) of Chapter 33.5 is revised to
***
rim
read:
In
te
(f) Denial. The petitioner will be notified of a denial on Form I-797, with attachments as
necessary, which will set forth the reasons for the denial. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights and
the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
the appeal. There is no appeal from a decision to deny an extension of stay to the
alien.
***
23. The first paragraph of Section (f) (but not the Note) of Chapter 33.6 is revised to
read:
***
(f) Denial. The petitioner will be notified of a denial on Form I-797, with attachments as
necessary, which will set forth the reasons for the denial. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights and
the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 10
the appeal. There is no appeal from a decision to deny an extension of stay to the
alien.
***
24. The first paragraph of Section (f) (but not the Note) of Chapter 33.7 is revised to
read:
***
M
em
o
(f) Denial. The petitioner will be notified of a denial on Form I-797, with attachments as
necessary, which will set forth the reasons for the denial. As required in Chapter
10.7(b)(5) of this manual, the decision must include information about appeal rights and
the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over
the appeal. There is no appeal from a decision to deny an extension of stay to the
alien.
***
25. Section (f)(4)(E) of Chapter 71.1 is revised to read:
rim
***
26. The AFM Transmittal Memoranda button is revised by adding, in numerical
order a new entry to read:
In
te
(E) Denial. If the application is denied, the denial must give the reasons for the
denial in writing. As required in Chapter 10.7(b)(5) of this manual, the decision
must include information about appeal rights and the opportunity to file a motion
to reopen or reconsider. The AAO has jurisdiction over the appeal.
AD11-09
1/26/2011
Chapter 10.3
Chapter 10.7(b)(5),
Chapter 20.3(b)(2),
Chapter 21.2(f)(3)(E),
Chapter 21.2(h)(2)(F),
Chapter 21.3(b)(6),
Chapter 21.4(f)(A),
Chapter 21.5(e)(2),
Chapter 21.5(e)(3),
Chapter 21.7(d)(7)(A),
Chapter 21.8(c)(4)(B),
Chapter 21.9(c)(4)(B),
Chapter 21.10(e)(2),
Revises the AFM to require that notice
of the right to file a motion to reopen or
reconsider be included in all denial
decisions.
M
em
Chapter 22.2(j)(4),
Chapter 22.2(l)(2),
Chapter 22.3(b)(10),
Chapter 22.3(r)(3)(B),
Chapter 31.3(e)(2),
Chapter 31.4(l)(2),
Chapter 31.5(h)(2),
Chapter 31.6(c)(2),
Chapter 31.7(b)(2),
Chapter 33.4(f),
Chapter 33.5(f),
Chapter 33.6(f),
Chapter 33.7(f), and
Chapter 71.1(f)(4)(E)
o
PM-602-0028: Notice to Applicants and Petitioners Concerning Ability to File Motions to
Reopen or Reconsider; Revisions to AFM Chapter 10.7; AFM Update AD11-09
Page 11
rim
Use
This memorandum is intended solely for the instruction and guidance of USCIS personnel in
performing their duties relative to adjudications. It is not intended to, does not, and may not be
relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any
individual or other party in removal proceedings, in litigation with the United States, or in any
other form or manner. In addition, the instructions and guidance in this memorandum are in no
way intended to and do not prohibit enforcement of the immigration laws of the United States.
In
te
Contact information
Questions regarding this guidance should be directed through appropriate channels to the Office
of Policy and Strategy.
