Purposes and functions of USCIS petitions applications motions and appeal, etc...
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Purposes and Functions of USCIS Petitions,
Applications, Motions, and Appeals etc…
By Joseph P. Whalen (October 5, 2013)
In the course of my periodic intensive reviews of AAO Administrative
Decisions (Non Precedent Decisions) posted on the USCIS website, it
has occurred to me that many practitioners have difficulty grasping
the differences between the various items listed in the title of this
article. I shall endeavor to share my conceptualization of the purposes
and functions of them. My understanding should be taken as a given
in the numerous articles that I write but I thought it might be helpful
to my loyal readers to simply spell it out blandly and bluntly. Here
USCIS Petitions, Applications, Motions, and Appeals each have a
specific purpose and function, as well as statute(s) and/or
regulation(s) underlying it. They can be confusing and anywhere from
slightly to highly complex.
USCIS Petitions, in my mind, are requests for “classification” of
one sort or another. These entail establishing some form of qualifying
“relationship(s)” and/or specific “qualifications”. Collectively, the
relationship(s) and associated qualifications, such as employment
experience, required education, and/or specific training are known as
All petitions, as far as I can tell, entail establishing facts and/or
circumstances in accordance with at least one legal definition,
sometimes more than one. There are “family-based”, “employment-
based”, and “specific” or “special” varieties of classification petitions.
The family-based petitions demand that there be a specific familial
relationship in existence at some point, usually “at time of filing” the
instant petition. I say usually because I am including the I-360 which
is used by widows, widowers, orphaned children, or some parents of a
deceased petitioner. In addition, special provisions allow for the
continuation of processing for an immigrant visa when a petitioner or
primary/principal beneficiary has died prior to completion of the
immigration process and/or entry to the U.S. on a valid immigrant
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visa. These various terms and therefore the relationships are
defined by law.
Family-Based: Spouse, widow(er); child: natural in-wedlock;
natural out-of-wedlock which includes the legitimated child or bona
fide parent-child relationship; stepchild; adopted child; and orphan;
parent is also specifically defined but relates back in most cases to the
applicable definition of child; and lastly siblings who are NOT defined
unto themselves but are instead defined by reference to having both
met the applicable definition of child as applied to a common parent,
as defined by law. WOW!
Employment-Based: There are five (5) broad categories with a
variety of sub-classifications or variants of employment-based
immigrant petitions and even more non-immigrant worker
classifications to contend with. Each variety of visa is dependent on
the laws specifically addressing it. These petitions are often
misunderstood to be solely reliant upon and sometimes too focused
upon establishing the “qualifications” alone without a thought to the
specific “relationship(s)” that also must be proven and exist.
When I speak of “relationships” in the employment-based context I
am referring to the “employer-employee” and “business-to-business”
relationships most often encountered. There is also the oddball
situation where the “importing employer” is also a “relative” of the
beneficiary which throws another monkey-wrench into the works.
The H1-B is a prime example where the prospective or continuing
“employer-employee” relationship must be proven, but also for the
L-1 intracompany transferee or E1-3 multinational executive or
manager, who must demonstrate a qualifying and pre-existing
employer-employee relationship between petitioner and beneficiary.
The L-1 and E1-3 have an additional relationship issue to contend
with beyond that found between employer and employee.
The “business-to-business” relationship between the beneficiary’s
foreign employer and the U.S. employer who is filing the petition
must be fully demonstrated and documented to the satisfaction of
USCIS. That relationship must be in accordance with the statutory
language and as refined either by another statutory provision or
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applicable regulations or perhaps a precedent decision. There are
many times when the “business-to-business” relationship is the
critical factor in these petitions. One MUST qualify to file any type of
In the context of the intracompany transferee (L-1) or multinational
executive or manager (E1-3), where the employer is itself composed
of multiple components, including but not limited to parent
companies, subsidiaries, and/or affiliates etc… within its overall or
umbrella “organization”, the concept of employer is loosely defined
but not open-ended. There will be situations where the connection is
too tenuous and the nexus between the foreign and U.S. employers
ceases to be possible, plausible, probable, and most of all credible.
For example, where services and/or products of foreign company A
will be paid for by U.S. company B to purchase and perhaps install
and/or maintain equipment, processes/procedures, software etc...,
and apply its proprietary knowledge on behalf of company B; is not a
qualifying relationship in that it is actually a “seller or service-
provider-to-customer” relationship. As such company B who is
merely the “customer” cannot petition on behalf of any employee of
company A because no proper and qualifying business relationship
exists to justify filing any intracompany transferee I-129 petition or
multinational executive or manager I-140 petition.
The above described situations involve determinations based upon
specific-fact-dependent judgments-on-the-merits and will be
“findings-of-fact” by an adjudicator based upon the evidence
presented and any arguments submitted on brief as well as any and
all narrative statement(s) offering explanation(s) and; supporting
documentation such as: tax filings, contracts, and other business
registration or organizational papers. The customer might be serviced
by an employee of company A who merely needs a B-1 visa for which
there is no petition required.
As mentioned above, there are special or specific USCIS forms filed
for special or specific relationships or circumstances. The
prime example I can think of to start with is the prospective refugee,
who is located abroad or applicant for asylum, who is within the U.S.
either of whom must meet the statutory definition of refugee found at
INA § 101(a) or 8 USC §1101(a): [underlining added for emphasis]
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(42) The term “refugee” means
(A) any person who is outside any country of such person's
nationality or, in the case of a person having no nationality, is
outside any country in which such person last habitually resided,
and who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion, or
(B) in such special circumstances as the President after appropriate
consultation (as defined in section 1157(e) of this title) may specify,
any person who is within the country of such person's nationality
or, in the case of a person having no nationality, within the country
in which such person is habitually residing, and who is persecuted
or who has a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion. The term “refugee” does not include any person
who ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion. For
purposes of determinations under this chapter, a person who has
been forced to abort a pregnancy or to undergo involuntary
sterilization, or who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion, and a person who has a
well founded fear that he or she will be forced to undergo such a
procedure or subject to persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear of
persecution on account of political opinion.
There are other varieties of special or specific relationships or
circumstances that may lead to immigration to the U.S. Another
example is someone covered under VAWA (Violence Against Women
Act) [it covers more than just battered women]. VAWA allows the
battered fiancés, spouses, children (including step or adopted
children), as well as the children and in some case parents of these
individuals or of the original petitioner to gain refuge due to the
abuse that they have endured and suffered. There are more special
situations for one to explore beyond those already mentioned such as
the “Special Immigrant Juvenile” (SIJ) who has been made a ward of
the court or another government entity as but one further example.
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USCIS Applications are requests that go beyond mere classification;
they instead are requests for an “actual benefit” under the INA
or any other immigration law of the United States. There are many
varieties of benefits potentially available; some are short-term and/or
temporary which might be an interim benefit on the way to a
bigger or permanent benefit; or it might be the best that one
can get based on their situation. Withholding of Removal (WOR) or
Deferred Enforced Departure, (DED) Temporary Protected Status
(TPS), or deferral under CAT1, are some varieties benefits with
additional benefits that are also quite tenuous and may be very
fleeting. A key prize sought by most individuals in these above named
categories is work authorization through the filing of USCIS Form I-
765 in pursuit of the highly coveted EAD (Employment Authorization
Document). Others may be equally covetous of obtaining Advance
Parole, a Re-Entry Permit (REP); or Refugee Travel Document (RTD)
any of which can make departing from and returning to the United
States possible. Certain individuals might be in or facing a situation
where their individual circumstances have kept them, or could
potentially keep them, apart from loved ones for decades. These
various immigration benefits mentioned may aid some in their desire
to travel or cure their inability to travel. The number one way to fix
that problem is to naturalize and get a U.S. passport.
USCIS Motions are made to the “official” that made the last decision
in a case. Therefore Motions may be made to the Service Center,
Field Office, or District Director, as applicable, or to the AAO. USCIS
Motions come in four distinct basic varieties: Motion to Reopen a
case denied due to abandonment; regular Motion to Reopen; Motion
to Reconsider; and lastly a Combined motion to Reopen and
Reconsider. In order to Reopen an Abandoned case which might
alternatively be called a Dismissal for Lack of Prosecution, or in the
case of an N-400,2 certain Administratively Closed cases; one must
1 U.N. Convention Against Torture….
2 N-400s are tricky and handled specifically in accordance with statute more detailed than many
other immigration benefits.
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prove certain limited facts outlined in the law. Let’s start with the last
A Motion to Reopen [denied due to abandonment….]. This variety
of Motion is extremely limited and restricted, if one is successful in
reopening it, then a stalled case is placed back in action. The result of
the underlying case is a whole other matter.
8 CFR § 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special agricultural worker and
(2) Requirements for motion to reopen. …..
A motion to reopen an application or petition denied due to abandonment must be filed
with evidence that the decision was in error because:
(i) The requested evidence was not material to the issue of eligibility;
(ii) 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
(iii) The request for additional information or appearance was sent to an address
other than that on the application, petition, or notice of representation, or that
the applicant or petitioner advised the Service, in writing, of a change of address
or change of representation subsequent to filing and before the Service's request
was sent, and the request did not go to the new address.
A regular Motion to Reopen requires one to actually make a better
case for approval and back it up with additional evidence but not
brand new evidence. If an applicant or petitioner comes up with a
new or varied approach, this is the best venue in which to present it.
A brand new argument or approach to meeting an evidentiary
criterion is not allowed in an AAO a Motion to Reopen, Motion to
Reconsider, or Appeal. In a Motion to a “Director”, maybe you might
get lucky and they will exercise their authority to re-examine the case
sua sponte. AAO rarely uses its sua sponte authority for the benefit of
the applicant or petitioner.
8 CFR § 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special agricultural worker and
(2) Requirements for motion to reopen. A motion to reopen must state the new facts to
be provided in the reopened proceeding and be. …. supported by affidavits or other
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A Motion to Reconsider requires one to make a specific charge or
charges s as to a legal or factual error or errors in the underlying
decision based on the evidence already in the record of proceeding.
Do not confuse this type of Motion with a Motion to Reopen. That
said, the two types of Motions can be combined, more on that below.
8 CFR § 103.5 Reopening or reconsideration.
* * * * *
(3) Requirements for motion to reconsider. A motion to reconsider must 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 Service policy. A motion to reconsider a
decision on an application or petition must, when filed, also establish that the decision was
incorrect based on the evidence of record at the time of the initial decision.
A Combined Motion to Reopen and Reconsider (MTRR)
requires one to point out legal and/or factual errors based on the
record evidence AND to offer new information/evidence to bolster
the case already presented. One cannot make a totally new case via a
Motion or Appeal UNLESS the denial brings up a new fact or legal
argument not previously addressed by either party. More on that will
USCIS Appeal to AAO
An Appeal to AAO demands a showing that the previous decision was
wrong. It may be based on an error of fact or law or a combination.
This proceeding may be viewed as an opportunity to put the best spin
on the evidence already presented as one of the challenges might be
that the evidence was weighed incorrectly. Another way of stating that
proposition is that “incorrect standard of evidence” was applied to the
case. Most immigration cases rely upon the “preponderance of the
evidence” standard but a few types of cases have a higher standard
such as proving a bona fide marriage by “clear and convincing”
evidence or for an EB-1 (extraordinary ability) “clear” evidence of a
job offer or that one will enter to “continue to work” in the same type
of field of endeavor. The long and short of an appeal is to have AAO
examine the case and all the evidence (as permitably supplemented)
along with any “clarifications” stated in any brief, narrative, or
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What is [an] APPEAL?
In civil practice. The complaint to a superior court3 of an injustice done or error
committed by an inferior one, whose judgment or decision the court above is
called upon to correct or reverse. The removal of a cause from a court of inferior
to one of superior jurisdiction, for the purpose of obtaining a review and retrial.
Wiscart v. Dauchy, 3 Dall. 321, 1 L. Ed. 019. The distinction between an appeal
and a writ of error is that an appeal is a process of civil law origin, and removes a
cause entirely, subjecting the facts, as well as the law, to a review and revisal; but
a writ of error is of common law origin, and it removes nothing for re-
examination but the law. Wiscart v. Dauchy. 3 Dall. 321, 1 L. Ed. G19; U. S. v.
Goodwin, 7 Cranch, 108, 3 L. Ed. 284; Cunningham v. Neagle, 135 U. S. 1, 10
Sup. Ct. 058. 34 L. Ed. 55. But appeal is sometimes used to denote the nature
of appellate jurisdiction, as distinguished from original jurisdiction, without
any particular regard to the mode by which a cause is transmitted to a superior
jurisdiction.4 U. S. v. Wonson, 1 Gall. 0, 12. Fed. Cas. No. 10,750. In criminal
practice. A formal accusation made by one private person against another of
having committed some heinous crime. 4 Bl. Comm. 312. Appeal was also the
name given to the proceeding in English law where a person, indicted of treason
or felony, and arraigned for the same, confessed the fact before plea pleaded, and
appealed, or accused others, his accomplices in the same crime, in order to obtain
his pardon. In this case he was called an “approver” or “prover,” and the party
appealed or accused, the “appellee.” 4 Bl. Comm. 330. In legislation. The act by
which a member of a legislative body who questions the correctness of a decision
of the presiding officer, or “chair,” procures a vote of the body upon the decision.
In old French law. A mode of proceeding in the lords’ courts, where a party was
dissatisfied with the judgment of the peers, which was by accusing them of having
given a false or malicious judgment, and offering to make good the charge by the
duel or combat. This was called the “appeal of false judgment.” Montesq. Esprit
des Lois, liv. 28, c. 27.
Above from the Law Dictionary: http://thelawdictionary.org/appeal/#ixzz2h3neSMGx
For this discussion, an appeal is a request to re-examine the issue(s)
of the particular case as to matters of fact, law, or a combination of
them which is generally dealt with as a matter of judgment which is
commonly referred to as a mixed question of fact and law.
8 CFR § 103.3 Denials, appeals, and precedent decisions.
(a) Denials and appeals—
(i) Denial of application or petition.
When a Service officer denies an application or petition filed under § 103.2 of this part,
the officer shall explain in writing the specific reasons for denial. If Form I-292 (a
denial form including notification of the right of appeal) is used to notify the applicant or
petitioner, the duplicate of Form I-292 constitutes the denial order.
3 In this case, it includes an appeal to higher administrative official, authority, or tribunal.
4 In some cases, a case may be “renewed” before an Immigration Judge in Immigration Court.
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When challenging the initial (or latest) decision in a particular case,
the appellant (respondent in Removal Proceedings) must make
specific charges of error and explain their reasoning. They may offer
additional evidence that supports a claim previously made but
making an entirely new case is generally not permitted. To make an
entirely new case generally demands the filing of a new application or
petition. This is so because USCIS is supported by the fees it charges
to adjudicate those applications and petitions. As an example,
suppose that an I-140 is filed for someone who is claiming to be an
alien of “extraordinary ability” (EB-1) but fails to prove their case.
That same petition cannot be appealed on the basis of that person
being an alien who is a “professional with a baccalaureate degree”
(EB-3). The money has been spent adjudicating the original request
so in order to make a new claim; one must file a new I-140.
ETC…. (RFEs, NOIDs, and Certifications)
There are other venues that vary in their frameworks and may allow
greater freedom in making a case. The Request for Evidence (RFE)
should spell out the deficiencies thus far identified with the particular
case which prevents approval. A sufficient response should cure the
deficiencies and allow approval. The Notice of Intent to Deny (NOID)
is a bit more serious. It will also point out the majority of deficiencies
identified but usually includes a problem that at least seems (in the
adjudicator’s assessment) to be insurmountable. Very often, it
appears that a prerequisite was not met and cannot be cured after the
fact. This information can be helpful for a subsequent filing.
Certifications are initial decisions that are sent along to AAO for
review. This is a golden opportunity to put the best case forward to
USCIS’ premier administrative appellate body, free of charge.
I hope that this missive helps someone out there towards a better
understanding of these various opportunities to present the best case
That’s my two-cents, for now