A denial leaves three formal routes, and they are not interchangeable. One argues the law was misapplied, one introduces new facts, one sends the case to the appellate body. All three run on the same thirty-day clock.
- Appeal to the AAO: complete appeal within thirty days, on Form I-290B
- Motion to reconsider: within thirty days, arguing incorrect law or policy
- Motion to reopen: within thirty days, bringing new facts
- Late reopening may be excused in limited circumstances; reconsideration has no such allowance
- A denied petition establishes no priority date
The appeal
"The affected party must submit an appeal on Form I-290B. Except as otherwise provided in this chapter, the affected party must pay the fee required by 8 CFR 106.2. The affected party must submit the complete appeal including any supporting brief as indicated in the applicable form instructions within 30 days after service of the decision." 8 CFR 103.3(a)(2)(i)
Two details worth noting. The complete appeal, including any supporting brief, is due within the window, so this is not a notice followed by argument later unless the form instructions provide otherwise. And the officer who made the decision reviews it first: the regulation provides that the official who made the unfavourable decision reviews the appeal, and may take favourable action instead of forwarding it.
Motion to reconsider
This one argues the decision was legally wrong on the record as it stood:
"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." 8 CFR 103.5(a)(3)
That last clause is the constraint. You are arguing about the record that existed, not improving it. If your case is that the officer applied the wrong standard, misread the Policy Manual, or ignored the two-step structure described in the final merits determination, this is the route that fits.
Motion to reopen
This one brings something new:
"A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." 8 CFR 103.5(a)(2)
New facts, documented. Not a better presentation of old facts.
Reopening also carries the only flexibility on timing anywhere in this area:
"Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner." 8 CFR 103.5(a)(1)(i)
Note that the same sentence gives motions to reconsider a flat thirty days with no equivalent excuse. Do not rely on the exception; it is discretionary and it requires demonstrating both reasonableness and lack of control.
Motions are filed on Form I-290B, and the regulation requires them to be in writing.
Refiling
Not a challenge to the decision at all, and often the right answer. A fresh petition lets you present the record you should have filed, including everything the denial told you was missing.
The cost is stated plainly in the regulation:
"A denied petition will not establish a priority date." 8 CFR 204.5(e)(3)
So a denial leaves you with no priority date from that filing, and a new petition starts a new one. If you hold an approved petition from earlier, priority date retention explains what can carry across.
Choosing between them
This is legal strategy and it belongs with your attorney. What is useful to understand going into that conversation is which question each route answers.
| If the problem is | The route that fits |
|---|---|
| The officer applied the wrong standard or ignored governing policy | Motion to reconsider |
| Facts exist that were not before the officer | Motion to reopen |
| You want an independent body to review the decision | Appeal to the AAO |
| The record was genuinely thin and you can now build a better one | A new petition |
The denial notice itself is the starting point. USCIS states that where a petitioner has failed to demonstrate eligibility the officer "must articulate the specific reasons" rather than making general assertions, so a denial should tell you what went wrong in terms specific enough to act on.
Reading a denial usefully
- Diary the thirty-day date immediately, from service of the decision
- Separate the grounds: which are legal, which are evidentiary, which are both
- Check whether the two-step structure was followed, since a denial that treats criteria as the whole case may be a legal issue
- List what evidence exists now that did not then, which points toward reopening or refiling
- Get your attorney the full notice, not a summary of it
- Do not start assembling a new petition until the route is chosen, since the routes need different things
If the denial followed a request for evidence, the notice and the RFE read together usually show exactly where the record fell short. How to respond to an RFE and the most common RFE reasons cover the stage before this one, which is the cheaper place to solve the problem.
Sources
All accessed 25 August 2026.
- 8 CFR 103.3(a)(2), eCFR. Filing an appeal, the thirty-day deadline, and review by the deciding officer.
- 8 CFR 103.5(a), eCFR. Motions to reopen and reconsider, their requirements and deadlines, quoted verbatim above.
- 8 CFR 204.5(e), eCFR. Priority dates, including that a denied petition establishes none.
- USCIS, Form I-290B, Notice of Appeal or Motion. The form, instructions, and current fee.
We publish no fees or success rates here. Fees change and are set in the fee schedule, and we could not trace published outcome rates for these routes to USCIS data.
This article describes the options in general terms. It is not a substitute for advice from your attorney about your own case.
Frequently asked questions
How long do you have to appeal an I-140 denial?
The regulation requires the affected party to submit the complete appeal including any supporting brief within thirty days after service of the decision, on Form I-290B.
What is the difference between reopening and reconsidering?
A motion to reopen states new facts supported by affidavits or documentary evidence. A motion to reconsider argues the decision was based on an incorrect application of law or policy, judged on the evidence that was already in the record.
Can a late motion ever be accepted?
For a motion to reopen, the regulation allows the failure to file in time to be excused in the discretion of the Service where the delay was reasonable and beyond the control of the applicant or petitioner. No such allowance appears for motions to reconsider.
Does a denied petition preserve a priority date?
No. The regulation states that a denied petition will not establish a priority date.
Is refiling better than appealing?
It depends entirely on why the petition was denied, and it is a legal judgement for your attorney. A new filing lets you present a stronger record; an appeal or motion challenges the decision on the record as it stood.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.