Know Your Options
If you recently received a Notice of Denial, Automatic Withdrawal (AW) or Withdrawal on Notice (WON) from the Student and Exchange Visitor Program (SEVP) School Certification Unit (SCU) or SEVP Analysis and Operations Center (SAOC), in many cases, you may have the option to file the following:
- An Appeal
- A Motion to Reopen
- A Motion to Reconsider
- A Motion and an Appeal
The written decision issued to your school by SCU or SAOC will inform you of the reasons for denial or withdrawal, your rights, and filing information including the filing deadline. If you have appeal rights, you may file both an appeal and a motion. While the motion is considered and decided by the official who made the decision on which the motion is based, an appeal will be reviewed and decided by an independent staff and authority. However, the motion and the appeal will not be adjudicated simultaneously. Should you choose to file both a motion and an appeal, the appeal will be held in abeyance until the motion is finalized. Depending on the outcome of the adjudication of the motion, the Administrative Appeals Team (AAT) will then begin the adjudication of the appeal. If you choose to submit both a motion and an appeal, two separate Forms I-290B must be submitted.
Please note that effective June 24, 2019, there is a $675 fee each time schools file the Form I-290B, “Notice of Appeal or Motion.” Before filing an appeal or motion, a school must pay the $675 fee via Pay.gov and must also submit the proof of payment with their Form I-290B before the deadline to timely file expires. See 8 CFR 214.4(h) (“The appeal must be accompanied by the fee as provided in 8 CFR 103.7(b)(1)(ii)(O).”) See 84 FR 23930. Visit the Filing an Appeal or Motion- Pay Fees page for payment instructions.
Only individuals with legal standing at the school may file a motion and/or appeal on behalf of the school. For more details about filing a motion and/or appeal, please review the frequently asked questions link.
Know the Difference
An appeal is a request that both the original deciding body (i.e., SCU or SAOC) and an independent entity (i.e., AAT) review the unfavorable decision and the school’s eligibility for certification. AAT is a separate administrative appellate entity. The mission of AAT is to conduct an appellate review of SEVP adjudications to ensure consistency and accuracy in the interpretation of immigration law and policy, and render decisions in an efficient, fair, and timely manner in accordance with the National Security Investigations Division’s (NSID) mission. Your denial or withdrawal notice issued by SCU or SAOC will provide information about whether the decision may be appealed. The appeals process is outlined in the General Appeals Process Information PDF.
A motion is a request to the original deciding body that issued the unfavorable decision (i.e., SCU or SAOC for denial or withdrawal decisions or AAT for appellate decisions) to review its decision. Unlike an appeal, a motion on a SCU or SAOC decision is not forwarded to AAT for adjudication. Instead, the official who made the latest decision in the proceeding adjudicates the motion and reviews the case. With certain exceptions, you may file a motion to reopen and/or a motion to reconsider if you received an unfavorable decision in your case. You may file a motion even if your case is not eligible for an appeal.
There are two types of motions:
- A motion to reopen is a request to review an unfavorable decision based on new facts. The motion must state new facts and be supported by affidavits or other documentary evidence demonstrating your eligibility at the time you filed the underlying petition.
“New facts” means facts that have not been previously submitted in the proceeding. Reasserting previously stated facts or resubmitting previously provided evidence does not constitute “new facts.” Also, the new facts must be relevant to the issues raised on motion.
If the underlying application or petition was denied due to abandonment (for example, failure to respond on time to a request for evidence or a notice of intent to deny or withdraw), you may file a motion to reopen if you can show that:- The requested evidence was not material;
- The required initial evidence was submitted with the petition;
- The request for appearance or additional evidence was complied with during the allotted period;
or - The request for evidence or appearance was not sent to the address of record.
- A motion to reconsider is a request to review an unfavorable decision based on an incorrect application of law or policy. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision. The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions when filed and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision. See 8 CFR 103.5(a)(3). Unlike a motion to reopen, new facts or evidence are not considered in a motion to reconsider.
Filing Times for Appeals/Motions
Before you begin assembling evidence for your appeal and/or motion, please make note of the amount of time available to file. Schools denied initial certification/recertification or withdrawn from certification have 30 calendar days to file an appeal. By regulation, schools wishing to file a motion to reopen and/or reconsider have 30 calendar days to file following any unfavorable decision (e.g., initial denial, withdrawal, recertification denial, appeal, etc.). You may file your appeal or motion or both electronically by sending it to Appeals.AdminTeam@ice.dhs.gov. The petitioner must meet these deadlines for the appeal or motion to be timely filed and considered by SCU, SAOC, or AAT.
Schools must submit the fee for the appeal or motion prior to, or at the same time, they submit the Form I-290B. See 8 CFR 214.4(h); see also 8 CFR 103.2(a)(1) (“[e]ach form, benefit request, or other document must be filed with the fee(s) required by regulation. Filing fees… must be paid when the benefit request is filed.”) If the school fails to submit the required fee and Form I-290B in a timely manner, the appeal must be rejected as untimely, and therefore, improperly filed. In the situation of an appeal, the regulations regarding treatment of an untimely appeal as a motion — should it meet the requirements of a motion under either 8 CFR 103.5(a)(2) or 8 CFR 103.5(a)(3) — would apply.
See 8 CFR 103.2, 103.5(a)(3), 103.5(a)(2)(v)(B)(2), 214.4(h), and 84 FR 23930.
Computing the Filing Time Period: When computing the period of time for filing an appeal and/or motion, SEVP and AAT count every calendar day (including Saturdays, Sundays, and legal holidays) beginning with the first calendar day after the date SEVP or AAT served the unfavorable decision. If the last day of the filing period falls on a Saturday, Sunday or a legal holiday, the period to file an appeal or motion runs until the end of the next day that is not a Saturday, Sunday or legal holiday. See 5 USC 6103 for a listing of legal holidays.
See 8 CFR 1.2, 8 CFR 103.3, 8 CFR 103.5(a), 8 CFR 214.3(e) and 8 CFR 214.4.
Processing Times for Appeals
The review process ensures that each school’s specific situation is given maximum consideration. Because of the complexity of each appeal or motion and the nuances of each school's situation, AAT is unable to provide exact time frames regarding when a final decision will be issued. However, schools with an open appeal can use the School Appeal Status Tracker on Study in the States to track the progress of their school’s appeal.
If you have any questions or concerns regarding the appeal or motion process, please contact AAT at Appeals.AdminTeam@ice.dhs.gov. For more information on the appeal and motion processes, visit the following resources:
