Monday, February 7, 2011

USCIS Issues Interim Guidance on Providing Information on Appeals and Motions to Reopen or Reconsider in Denial Notices; Seeks Comments

U.S. Citizenship and Immigration Services (USCIS) has released to the public an interim policy memorandum (IPM) dated January 26, 2011, providing USCIS adjudicators issuing denial notices guidance on advising petitioners and applicants as to whether they may file a motion to reopen or reconsider or an appeal to the Board of Immigration Appeals (BIA or Board) or the Administrative Appeals Office (AAO).  The IPM, including the revised AFM chapters.
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The IPM, entitled “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,” points out that 8 CFR § 103.3(a)(1)(iii) requires that USCIS include in a written denial of a petition or application information about whether the petitioner or applicant can appeal the decision. In addition, the IPM notes that, when available, petitioners and applicants may also file motions under 8 CFR § 103.5 to reopen or reconsider an adverse decision and advises that, although not required by law or regulation, USCIS has determined that written decisions should also include information about the opportunity to file these motions.

The IPM directs that any written decision denying a petition or application must advise the petitioner or applicant as to whether he or she may appeal the decision to the BIA or the AAO and must include the proper appeal form if the decision is appealable. Adjudicators are also advised that, if available, written denials must also advise the petitioner or applicant that he or she may file a motion to reopen, a motion to reconsider, or both within the period specified in 8 CFR § 103.5(a). Such notices are to include Form I-290B. Despite the IPM's title, the AFM is revised throughout to reflect this guidance, not just in Chapter 10.7. The IPM, including the revised AFM chapters, is reproduced here.

The memorandum, which was posted on January 31, 2011, will be available on the website for 10 business days after posting. It is effective until further notice. USCIS states that adjudicators will use the current memorandum with the understanding that the guidance may be revised after the comment period closes. Final guidance will be issued to the field offices and service centers following review and consideration of the comments from the public.

Comments must be submitted by February 14, 2011, and should be emailed to opefeedback@uscis.dhs.gov. The title of the memorandum should be in the subject line of the email. Comments should refer to a specific portion of the memorandum, explain the reason for any recommended change, and include data, information, or authority that support the recommendation. USCIS may distribute any comments received (including any personal information and contact information) on its public website or to those who request copies.

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