After your T-Visa has been denied, you have the option to request the field office that issued the unfavorable decision to re-evaluate the decision either based on a misapplication of law (Motion to reconsider) or new evidence (Motion to reopen).  Whether you file a motion to reopen or reconsider, both of these motions will go back to the Vermont Service Center to re-evaluate the decision. You will have 33 days to file Form I-290B, Notice of Appeal or Motion, to request a motion to reopen and/or reconsider.

What is the difference between a motion to reopen, motion to reconsider, and appeals?

An appeal is a request for a different authority, the USCIS Administrative Appeals Office in the case for a T visa denial, to review the unfavorable decision.  The AAO will review the case on de novo review based on the evidence that has been included in the administrative record. You also receive the option of filing the Form I-290B within 33 days of receiving the denial notice and then submitting a brief and up to 30 days after filing the I-290B.

However, a motion to reconsider or reopen, are both motions for the same USCIS field office that denied the T visa to review the denial again. You may or may not receive the same adjudicator that issued the initial denial, reviewing your motion to reconsider or reopen, but the motion will not be reviewed by a different authority. Upon receiving an MTR, the adjudicator may take the new facts/evidence or correct application of the law into consideration and overturn their denial decision to grant the T visa. Additionally, another big difference between MTRs and appeals is that for MTRs any brief and new evidence for the motions must be submitted to VSC within 33 days of receiving the denial notice at the time Form I-290B is filed. No additional time will be allotted to file a separate brief or new evidence.

Why should I file a motion to reconsider or reopen if it just goes back to VSC to evaluate?

• MTRs allows you to strengthen any legal T visa arguments to prevent the AAO from denying the T-visa on another ground or remanding and giving another opportunity for VSC to deny on another ground. For example, if the issue was physical presence and the AAO decides that the applicant is physically present on account of trafficking, but later finds that the client will not suffer extreme hardship, the AAO may deny granting the T visa on a different ground. 
• Ensuring that the strongest argument for all of the T visa requirements and utilizing the MTRs to either re-focus/re-frame the trafficking facts to be stronger or strengthen other eligibility requirement arguments also helps to lay the foundation for a successful appeal to the AAO or higher court.
• Allows for any arguments for the adjudicator to use positive discretion and not issue a Notice to Appear (NTA) and place the victim-applicant into removal proceedings. See sample NTA arguments.

Other Resources for MTRs

• MTR Regulations: 8 CFR 103.5
• USCIS FAQ: https://www.uscis.gov/forms/questions-and-answers-appeals-and-motions
• USCIS Form I-290B Instructions: https://www.uscis.gov/i-290b

Top tips on filing MTRs

• You must articulate and argue for why the MTR should be granted first before you can raise the arguments for why the person is eligible for a T visa. Many practitioners forget to first argue for why the motion to reopen or reconsider should be granted first and then argue what the correct result should be with the new evidence or correct application of the law.  See Sample MTR outline
• If filing for a Motion to Reopen, you must first articulate which facts are new and have never been submitted in the previous filings AND why these new facts will change the outcome of the T visa application. It is not enough to submit a new supplemental declaration with new facts for a motion to reopen, but you must also argue for why these new facts are material and will cause the denial to be overturned in the first portion of the motion.
• If filing for a Motion to Reconsider, you must first articulate what law or USCIS Policy has been misapplied AND how the correct application of the law or USCIS policy would lead to a grant of the T visa. Be sure to cite regulations and statements from the T visa Regulation Preamble that demonstrate what USCIS policies are being misapplied.
• On the Form I-290B, be sure that you include the correct receipt number. In general, you should include the underlying T-visa I-914 receipt#.
  • If you are appealing or submitting an MTR on a denied derivative application, please include the I-914 Supplement A receipt #
  • Do not include I-192 Receipt#s.
• Be sure to file appropriate fee waiver requests for all included parties. If appealing a denial of a derivative application, be sure to also include a fee waiver for the derivative applicant.
  • See CAST fee waiver practice advisory for more guidance on fee waivers.
• If your MTR is dismissed or rejected:
  • Make sure that you fix the alleged deficiency of the application and refile it as soon as possible. In your re-filing, be sure to include the original rejection notice, and if warranted you can include a quick cover letter explaining why the rejection/dismissal was an error and why USCIS should consider this to be a timely filing to prevent a violation of applicant’s due process rights.
  • After refiling, email a digital copy of the refiling of the MTR to the VSC email hotline and explain how the MTR was erroneously rejected and that the underlying motion should be accepted as timely. Be sure to include the T-visa receipt# in the subject line and to ask for specific guidance as to what additional steps can be taken to ensure that the MTR be accepted as timely.
  • Contact the Ombudsman’s Office to notify them of the erroneous rejection of the MTR and request for additional assistance to ensure that the refiled MTR be accepted as a timely filing to enforce the due process rights of the applicant.

If you have any further questions regarding an MTR or how to respond to a T visa denial, fill out an online TA request at http://bit.ly/CASTTaForm