Karen Weinstock is a partner in Siskind Susser’s Atlanta office. She can be contacted at kweinstock@visalaw.com

Winning a motion to reopen and reconsider is a great accomplishment for immigration attorneys. It is almost like a white elephant myth. Since the same BCIS officer that denied the petition in the first place adjudicates the motion, attorneys face low success rates in these motions. The review process is the reason why many immigration practitioners are hesitant to file a motion to reopen, instead choosing to file an appeal or do nothing. Filing an appeal usually means a long wait, typically between six months and a year. Trying to find another visa category under which the client may be admitted is another available option. However, sometimes there are no other options, and the immigration attorney concludes that the petition should not have been denied.

In one recent case, we filed an H-1B visa petition for a manager of a small professional services firm. We used the premium processing service because the company needed its employee to start working as soon as possible. The BCIS issued a Request for Additional Evidence (RFE), which is not uncommon these days, questioning whether the position was a specialty occupation. The requested evidence was submitted to the service. However, the BCIS denied the petition arguing the specialty occupation part of the petition was not proven since the firm was small and relatively new. This reasoning was offered despite the fact that this is a top managerial position and the company is financially stable, as ability to pay the wage was never an issue.

However, the service itself admitted in its denial letter that the “proposed duties appear to be the duties normally required of a … [specialty occupation position]”, and that “ this service is not convinced that the beneficiary will be performing the specific duties described above. As you are a small, relatively new company …” We felt that the service made an error in denying the case, especially when the denial admitted the position was a specialty occupation. We were also concerned about discrimination against small businesses especially by an administration that has claimed to be the friend of the small business owner (which happens to be the majority of business owners in the country). Therefore, we decided to file a motion to reopen and reconsider.

As mentioned earlier, immigration attorneys often overlook filing a motion to reopen due to low overall success rates. However, we should keep in mind all the available possibilities to correct an error of law, an error of interpretation, or simply a wrong decision by a BCIS officer, instead of a lengthy and expensive appeal that may not be the best option for the client.

The great advantage to a motion to reopen is that it is usually adjudicated within 30-60 days, and sometimes faster in premium processing units. Also, if an officer denies a motion to reopen, a supervisor must approve his/her denial. An approval of such motion is not supervised. The motion must be filed within 33 days of receipt of the decision on the case (or 30 days if the decision was received by fax), along with the $110 filing fee. There is no specific form to file so the motion can be printed in many formats.

We have included the following documentation in the typical motion to reopen. These documents increase the likelihood of success in such circumstances:

• Brief Excerpt of the written decision and why you disagree with it.  The attorney must not be lengthy in his/her excerpt but on-point with the key issue of disagreement.  In the above case, we have outlined the fact that the service itself admitted that the position was a specialty occupation and the decision to deny seemed arbitrary.

• Brief excerpt of the laws and regulations relating to the case.  In this case we have stated the laws as well as legal arguments.

• For H-1B cases, Dictionary of Occupational Title, OES Wage JobZone, and SVP levels in cases of specialty occupation challenges (note that we have submitted that evidence also in response to the RFE).  In this case the SVP level was 8.0, a high indicative of a specialty occupation.

• New evidence.  This may be the most important aspect of the motion to reopen as new evidence that was not submitted before may give the officer a reason to change his/her mind.  In this case we used industry-wide standards as well as other materials to demonstrate the industry standards to the officer.

As you can all guess from the title of this article, the service reversed its own decision, granted the motion to reopen and reconsider, and sent an approval notice for my client, which we received with great surprise. Since our expectations were low, we were very happy indeed to receive that approval notice. It reminded us all not to assume a defeat in advance but to try our best to win, even if the odds are against us.