USCIS bundles three remedies on one form. Form I-290B, Notice of Appeal or Motion, is the vehicle for (a) an appeal to the Administrative Appeals Office (AAO), (b) a motion to reopen, and (c) a motion to reconsider. The two motions look alike on the cover sheet and share a filing window, but they answer different questions and require different evidence. Conflating them is the most common reason a viable post-denial challenge gets dismissed without merits review. The controlling framework sits at 8 CFR §103.5 and USCIS Policy Manual Volume 1, Part B, with the BIA’s analogous standard in Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).
What changed
The framework is stable; the fee changed. The 2020 USCIS fee rule, enjoined and then partially revived, set the I-290B fee at $675. The 2024 fee rule (89 FR 6194, Jan 31, 2024) reaffirmed that figure, effective April 1, 2024. Confirm the current amount on the I-290B form page before filing — fees change.
The substantive rules:
Motion to Reopen. 8 CFR §103.5(a)(2) requires the motion to “state the new facts to be provided in the reopened proceeding” and be “supported by affidavits or other documentary evidence.” The standard is new facts not previously available — material, not cumulative, and not reasonably discoverable at the time of the original adjudication. Matter of Cerna is the touchstone: a motion to reopen is for evidence that did not, and could not with due diligence, exist in the record at the time of decision.
Motion to Reconsider. 8 CFR §103.5(a)(3) requires the motion to “state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [USCIS] policy.” No new evidence — the existing record is the universe. The motion argues the officer misread the statute, the regulation, the Policy Manual, or controlling precedent.
The 30-day deadline. 8 CFR §103.5(a)(1)(i) requires the motion to be filed within 30 days of the decision — extended by three days when the decision was mailed under 8 CFR §103.8(b). USCIS may, in its discretion, excuse a late motion under §103.5(a)(1)(i) if the delay was reasonable and beyond the petitioner’s control — a narrow exception that requires documentary proof (medical emergency, mail-delivery failure with USPS tracking).
Why it matters
A motion that mislabels itself dies on intake. A motion to reopen styled as a motion to reconsider — that is, one that submits new evidence and asks the officer to reweigh it — fails §103.5(a)(3) because reconsideration looks only at the existing record. Conversely, a motion to reconsider styled as a reopen — one that argues the officer applied the wrong USCIS PM section without offering new facts — fails §103.5(a)(2) because the petitioner did not identify new evidence. The safe practice when both grounds exist: file both, in the alternative, on the same I-290B. The cover sheet allows it. The Policy Manual at Vol 1, Part B, Chapter 4 endorses combined motions.
Two strategic considerations follow.
Tolling and the 30-day window. A motion to reopen or reconsider does not toll any other deadline. If the underlying denial triggered a Notice to Appear under USCIS’s NTA Policy Memo (PM-602-0050.1), the NTA can issue even while a motion is pending. The motion is not a stay. A separate request for a stay of removal goes to ICE under 8 CFR §241.6 — different agency, different filing.
Appeal vs motion. Where the AAO has jurisdiction, an appeal is often the stronger path: de novo review of the legal issues, and a written precedent decision (when published) that binds future cases. A motion stays with the same officer or office that issued the denial. If the denial reflects an idiosyncratic local view that the AAO would reject on the law, appeal. If the denial turned on a factual gap that is easily cured by new evidence, reopen.
Officer-initiated reopening. Under 8 CFR §103.5(a)(5), USCIS may reopen on its own motion at any time to correct an error. A short, polite letter to the field office director that identifies a clear error and asks for sua sponte reopening sometimes works when the 30-day window has passed — and avoids the I-290B fee.
Way forward
- Identify the right vehicle before drafting. If the rebuttal depends on a State Department letter the petitioner just received, it is reopen. If the rebuttal depends on the officer’s misreading of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), it is reconsider. If both, file both.
- Cite specifics, not generalities. A motion to reconsider that says “the officer misapplied the Dhanasar three-prong test” without identifying which prong, which evidence, and which paragraph of the denial reads as bluster. Quote the denial. Cite the precedent. Walk through the analysis the officer should have done.
- Attach affidavits, not narrative. On reopen, sworn declarations from the people with personal knowledge of the new facts — beneficiary, petitioner, expert, witness — are the workhorse. Counsel’s brief frames the affidavits; it does not replace them.
- File before day 30 plus mailing time. Use USPS Priority Mail with tracking or FedEx. Keep the receipt with the file. USCIS Lockbox intake errors are common; the tracking number is the rebuttal.
- Do not file a new underlying petition while a motion is pending. A parallel filing creates inconsistent records and can be cited as evidence the original was abandoned.
- Track the AAO docket. AAO precedent decisions (and the non-precedent decisions database) are searchable. A recent reversal of a similar denial is the strongest exhibit for a motion to reconsider.
Disclaimer
Fola Form is a software company, not a law firm. This is educational content, not legal advice. Motion practice changes when USCIS updates fees or amends the Policy Manual — verify against 8 CFR §103.5 and USCIS PM Vol 1, Part B before relying on any specific timing or evidentiary rule. Consult a licensed immigration attorney about your specific case.