REPLY REQUEST FOR EVIDENCE AND MOTION TO REOPEN OR RECONSIDER 

By Roman P. Mosqueda, Esq.

The California Service Center is routinely sending Request Fro Evidence within the fifteen (15) day, premium processing period to avoid refunding the $1,000.00 fee.

            Indeed, gone were the days when it can adjudicate, approve or deny, the applications (H-1B, O, L, etc.) within 15 days from receipt. A Request For Evidence normally grants the applicant twelve (12) weeks to reply.

            The reply to the Request For Evidence should be filed as soon as possible within the 12 week period to take advantage of the premium processing and require adjudication of the application.

            Otherwise, the $1,000.00 premium processing fee would go to waste. Incidentally, the California Service Center is currently taking more than six (6) months to process applications without premium processing. 

Reply To Request For Evidence: 

            Evidence requested usually consists of: documents to support the application, explanations of the applicant on certain issues raised by the application, financial capacity of the applicant, education and experience of the beneficiary in employment-related or based application.

            In one of the cases of the author, the California Service Center requested the names, addresses, positions and salaries of all employees (teachers) past and present of the applicant school, the organizational chart of the school, income tax returns of the school and of the principal.

            Invoking privacy rights and trade secrets of the applicant school, the author requested waiver of the aforesaid requested evidence, and instead submitted the number of students, the payment for each student by the government grant to the school, the officers of the school, the number of teachers presently teaching and their salary range, among other things.

            The California Service Center presumably granted the author’s request for waiver, because it approved the H-1B application, presumably based on the substantial compliance of its Request For Evidence.

            On the other hand, the author has had horror stories involving cases in which the California Service Center had required strict and full compliance of its Request For Evidence such as signed school transcripts and dated by a school official, and signed and date by the school official on both sides the sealed flap on the outside of the envelope containing the school record.  An opened certified copy thereof was rejected.

            The California Service Center had presumably suspected fabrication or falsification of the school record, and was not inclined to do its own investigation. 

Motion To Reopen Or Reconsider: 

1.      Before District Director:

The District Director makes a decision denying an application or petition.

      A motion to reconsider the decision may be filed within thirty (30) days of the decision that the motion seeks to reconsider. It is filed on Form I-290A ($110.00 filing fee) with the District Director who made the decision, and may be accompanied by a brief.

                  Such a motion to reconsider under 8 C.F.R. § 103.5(a)(3) must:

                  1.      state the reasons for reconsideration;

2.   be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or service policy; and

3.   establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

                  Any delay in filing beyond the thirty (30) days period may be waived if the delay was reasonable and beyond the control of the applicant or petitioner, pursuant to 8 C.F.R. § 103.5(a)(1)(i).

                  Thus, a motion to reconsider is based on legal grounds alone.  If there are new evidentiary facts that were previously unavailable or could not have been discovered or presented before, a motion to reopen may be filed on Form I-290B ($110.00 filing fee) within the thirty (30) days of the date of the decision.

                  Under 8 C.F.R. § 103.5(a)(2), a motion to reopen must:

                  (1)      state the new facts to be provided in the reopened proceeding; and     

                  (2)            be supported by affidavits or other documentary evidence.

      In case an application or petition is denied due to abandonment, the motion to reopen must be filed with evidence that the decision was in error because:

(1)   the evidence requested in the Request For Evidence was not material to the issue of eligibility;

(2)   the required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(3)   the request for additional information or appearance was sent to an address other than that on the application or petition or notice of representation, or was not sent to a new address stated in a change of address sent to the Service. 

                  Thus, a motion to reopen may be filed with the District Director to reopen an H-1B petition, an adjustment of status application, based on new facts or evidence; an asylum or withholding application based on changed circumstances in the country of nationality; or change in the law or policy that makes the relief available. 

2.      Before Immigration Judge, Board of Immigration Appeals, or Administrative Appeals Office/Unit:

                  A motion to reopen or reconsider may also be filed before the Immigration Court, under 8 C.F.R. § 3.23, to reconsider or reopen a decision of the Immigration Judge, within thirty (30) days of the entry of the order of removal or deportation for a motion to reconsider, or within ninety (90) days thereof for a motion to reopen.

                  The motion must be filed with the Immigration Court, with proof of the $110.00 filing fee, proof of service to the District Counsel of the U.S. Citizenship and Immigration Services, and Notice of Appearance as Attorney or Representative (Form EOIR-28).

                  A motion to reopen or reconsider may be filed before the Immigration Court to reopen in absentia deportation or removal proceedings, reopen for adjustment of status, reopen where respondent’s conviction was vacated after leaving the United States under final deportation or removal order, or reopen asylum or withholding proceeding because of changed circumstances.

                  But the Immigration Court loses jurisdiction to hear the motion to reconsider or reopen if an appeal had been filed with the Board of Immigration Appeals and is pending appeal.

                  A motion to reconsider or reopen may also be filed with the Board of Immigration Appeals under 8 C.F.R. § 3.2 in any case in which a decision has been made by the Board.

                  The motion to reconsider must be filed within thirty (30) days after mailing of the Board’s decision, and must state the reasons for the motion by specifying the errors of fact or law in the decision, supported by pertinent authority.

                  A motion to reopen filed with the Board must state the new facts that will be proven at a hearing to be held, if the motion is granted and must be supported by affidavits or evidentiary material, and must be filed no later than ninety (90) days after the date of the final administrative decision of the Board.

                  And a motion to reopen a decision rendered by an Immigration Judge that is pending when an appeal is filed, or that is filed while an appeal is pending before the Board, may be deemed a motion to remand for further proceedings before the Immigration Judge; and may be consolidated with, and considered by the Board in connection with, the appeal to the Board.

                  There is no filing fee for filing a motion to reconsider or reopen with the Board of Immigration Appeals, after the Notice of Appeal fee of $110.00 (EOIR-29) has been paid by the alien-appellant.

                  Lastly, a motion to reopen or reconsider may also be filed (Form I-290B, Notice of Appeal), $110.00 filing fee before the Administrative Appeals Office or Unit, under 8 C.F.R. § 103.5.

                  The rules discussed above that apply to motions to reopen or reconsider before a District Director or Service officer also apply to such motions before the Administrative Appeals Office or Unit.

                  It should be emphasized that the filing of a motion to reopen or reconsider does not result in a stay of deportation or removal, except in in absentia proceeding wherein the alien did not receive notice of the hearing.

                  The moving alien must file a separate motion to stay deportation or removal pending adjudication of the motion to reopen or reconsider.

                  And departure by the moving alien from the United States during the pendency of the motion to reopen or reconsider may be considered abandonment of the motion.