7/9/2005

USCIS has published the proposed rule to raise the filing fees for Motion To Reopen or Motion To Reconsider (MTR) or Appeal to Administrative Appeals Office (AAO) from current $110 to $385. The USCIS is scheduled to finalize this rule into a final rule in August 2005 with a new filing fee of $385 effective October 2005.

Currently, when an appeal is filed with the AAO to contest the decision of the USCIS, the agency reviews decision before it passes it onto the AAO. This takes place in about a month. Once the agency buys the arguments which are addressed in the appeal, it simply changes its decision in the form of MTR and reverses itself approving the petition. It is considered a MTR on agency's own motion and supposedly a free meal. In this case, one fee payment practically covers both MTR and AAO Appeal. It is expected that this traditional practice of the agency may continue. 

The fee increase will also induce increased number of people initially attempting to file a request with the agency to reopen or reconsider its decision on its own motion when there is a clear material error in facts or law committed by the agency.

However, when one decides to seek a free meal, he/she should make it sure that MTR with the payment of the filing fees be filed within the mandated period (30 days) from the date of the agency's original decision in the event that no decision is received from the agency on the request for agency's own MTR within the period. Otherwise, the right to file MTR will be permanently gone once 30 day passes from the date of original decision of the agency. 

When a petition is denied, usually considering three options: 

(1) Refiling the petition in order to avoid the delay in the AAO appeal decision which takes minimum of from six months to over one year in most cases. 

(2) If the decision of the agency is egregiously an error in facts or law, attorneys sometimes request the agency to reopen or reconsider the decision on its own so that the harmed client gets a relief by the agency's reversal on free meal and in a short period of time. 

(3) Unless there is an agency's egregious error in the denial, attorneys usually file an outright formal AAO appeal with the request to the agency to review and reconsider its denials before passing it onto the AAO.