Is It Possible to Expedite a Motion to Reopen an H-1B Petition After Denial (Such as Premium Processing)?
Dec. 24, 2012
If you received an H-1B denial an option is going to be a Motion to Reopen/Reconsider/Appeal. As per the denial notice, an appeal is filed on form I-290B with the appropriate fee to USCIS. An expedite for the Motion to Reopen process (as in H1B premium processing) so that a decision within 15 days can be obtained is not available. One can appeal with the AAO-Administrative Appeals Office but must still send actual appeal, Motion to Reopen or Reconsider or both to the USCIS office who denied the case and they will then certify the case and send it to AAO in Washington, DC if they stand by their earlier denial or actually approve it if they change their mind from their previous denial and adverse finding. One can file motion to reopen or reconsider or both concurrently. Unless the appealing alien has new or compelling evidence, or something minor was missed etc. then perhaps the Appeal is the better option for you BUT, these are just general guidelines and one should not rely on them since without the benefit of competent review by immigration counsel.
Also, remember there are time sensitive deadlines and if you missed them you may not late file and your case becomes final. Be very cautious. Also, when you appeal or reopen/reconsider, if you ultimately prevail USCIS will go back and grant your H-1B from the outset BUT if you loose, you will not have accumulated even more time out of status, so its a gamble. The time to appeal is 30 days + 3 to allow for posting by USCIS to you. Once an appeal is missed a denial becomes final. It is therefore imperative to timely appeal. The AAO is severely backlogged and therefore the best bet is that the USCIS Service Center who initially denied the case will not certify the case to the AAO and after reviewing the case by a supervisor homely approve the case this time around. Unfortunately Motions to Reopen, Motions to Reconsider and Appeals are not placed in the Premium Process option track since many employers and alien applicants would probably be glad to pay the additional $1225 fee to USCIS for a prompt adjudication and USCIS which is solely dependent on fees from applicants and no longer enjoys funding from Congress and essentially operates as a private business could also use the additional revenue to improve its operations and hire and/or keep its staff and experts. Hopefully one day this option will be made available by USCIS for its customers.