When USCIS Makes an Error – I-290B to the Rescue!

The Form I-290B is used to file an appeal or motion to reopen or reconsider a decision made by U.S. Citizenship and Immigration Services (USCIS) on certain applications submitted to them for approval.  In most cases, the I-290B must be submitted to USCIS within 30 to 33 calendar days after notice of the decision.  The application along with the filing fee is sent to the mailing address that corresponds to the type of case you are filing the motion for or appealing.

Whether you use the I-290B to file an appeal, motion to reopen, or motion to reconsider depends on your basis for filing.  An appeal should point out an error made in application of the law or interpretation of the facts in the decision.  A motion to reopen must state new facts and must be supported by affidavits and documentary evidence proving the applicant was qualified at the time the application was filed.  A motion to reconsider must be supported by citations to statutes, regulations, or court decisions and must show that the decision was based on an incorrect application of the law or policy, and that the decision was incorrect based on the evidence of record at the time of the decision.  You can also choose to file a motion to both reopen and reconsider at the same time.  USCIS generally tries to issue a decision within 90 days to 6 months of filing, however, it is not unusual to wait up to 2 years for a final decision.

Our firm recently won a motion to reopen and reconsider that was pending for nearly two years.  Our client is an applicant for adjustment of status and had the required proof to show that she entered the United States legally with her visa and passport issued to her back in the early 90’s.  This particular type of visa, commonly issued at that time, was basically just a large stamp in her passport that acted as a border crosser/nonimmigrant visa valid for 10 years.  Since both her visa and passport are quite old, the passport page containing her biographic information and photo had become detached and fallen out of the booklet.  When we submitted copies and eventually originals of the entire booklet, USCIS denied her application for residency and accused the client and our firm of committing fraud.  They said that because her passport number on the biographic page that fell out did not match the passport booklet number, and the fact her passport expired one month before her date of entry to the United States, we must have put her biographic page into someone else’s passport.  Our motion pointed out to USCIS that the passport booklet numbers and passport numbers do not have to match as they are two separate and completely different things.  We also cited specific law showing that Mexican nationals can enter the United States on an expired passport if the visa they possess is still valid.  Thankfully, although we waited a very long time to get a decision on the case, USCIS realized their error and our client is now on the way to finally becoming a Legal Permanent Resident!

If you think USCIS made an error in deciding your case, it is important to have an experienced immigration attorney evaluate your case as soon as possible so that a timely motion or appeal can be filed on your behalf.

FIND OUT WHERE YOU STAND!  You may qualify for a benefit that you are not aware of yet.  If you have never talked to an immigration attorney about your situation before, now is the best time to do so – before the new administration makes changes that may affect you and your family.  Contact an experienced, licensed attorney to find out what YOU can do to help your situation. If you would like our assistance, contact our office today at 210-932-3600 to set up a consultation.

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