Form I-290B After an OPT, H-4 or H-1B Denial: Motion to Reopen, Motion to Reconsider, or Just Refile?
A denial is not always the end, but an I-290B will not keep you in status or at work. How to choose between a motion, an appeal and a fresh filing.
Part of our guide to the H-4 EAD.
An I-290B motion to reopen asks the USCIS office that denied your case to look again because you have new facts, with documents, showing you were eligible when you filed. A motion to reconsider, on the same form, argues the officer misapplied the law or USCIS policy to the record you already filed. An appeal goes to the Administrative Appeals Office (AAO), but only for some forms: OPT and H-4 denials (Forms I-765 and I-539) allow a motion only, while an employer can appeal most H-1B petition denials. You generally get 30 days from the decision, 33 if it was mailed, and the fee is $800. None of these keeps you in status or at work, so the choice often turns on whether a fresh filing is still possible.
Status as of November 1, 2026.
- In effect: the $800 I-290B fee on Form G-1055 (edition 10/26/26). I-290B filing locations changed on 2026-10-07; a package sent to an old address is accepted only if postmarked on or before Monday, 2026-11-09.
- In effect, challenged: PA-2026-05, since 2026-08-05, lets officers deny any benefit request without an RFE or NOID when required initial evidence is missing. AAUP v. Mullin (filed 2026-10-05) challenges it; there is no ruling as of 2026-11-01.
- In effect: PA-2026-15, since 2026-10-23. A day-counted paper deadline that ends on a weekend or federal holiday is met by the next business day.
- Proposed only: ending the worker 60-day grace period (RIN 1615-AD22). Comments close 2026-11-10; the current grace period applies.
- Blocked: the Duration of Status rule, by a federal court since 2026-09-14 (summary judgment briefed; DHS's appeal pending). USCIS says on its I-539 page that it is proceeding under the previous rules, so the F-1 60-day grace period still applies.
I-290B motion to reopen vs motion to reconsider: what each one asks
A motion to reopen asks the deciding office to weigh new facts, backed by documents showing you were eligible when you filed. A motion to reconsider argues the decision misapplied law or USCIS policy to the evidence already in the record. Both go on Form I-290B, cost $800, and are generally due 30 days after the decision, or 33 if it was mailed.
The regulation draws the line in two sentences. Under 8 CFR 103.5, 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." A motion to reconsider must show "that the decision was based on an incorrect application of law or Service policy," judged on "the evidence of record at the time of the initial decision."
The Form I-290B instructions (edition 05/31/24) add the test that decides most motions to reopen: the evidence must demonstrate "eligibility for the requested immigration benefit at the time you filed the application or petition." That sorts denials into three groups:
- Evidence that existed at filing but was not in the package (a transcript page, pay stubs, an employer letter) is the classic motion to reopen. It matters more under PA-2026-05, because a missing document can now bring a denial with no warning first; our guide to how a NOID differs from an RFE covers the warning steps you may no longer get.
- A fact that arose after filing (a degree conferred later, a rewritten job offer, a new employer) cannot rescue the old case, because it does not show eligibility at filing. That points to a new filing.
- An officer who misread a date, misapplied a rule or overlooked evidence you did submit points to a motion to reconsider, or an appeal if the form allows one.
You can file a combined motion (Part 2, Item 2.c); USCIS "will separately determine" each half and may grant one while dismissing the other. You cannot select both an appeal and a motion on one form, and each I-290B covers one receipt number.
Motion, appeal or refile: the decision table
Table 1. Your four routes after a denial, as of 2026-11. Sources: Form I-290B instructions (05/31/24), 8 CFR 103.3 and 103.5, Form G-1055 (10/26/26).
| Route | Use it when | Who decides | What you send | Deadline | Fee |
|---|---|---|---|---|---|
| Motion to reopen | Documents show you were eligible when you filed | The office that denied the case | I-290B with all new evidence attached | 30 days, 33 if mailed; lateness may be excused if reasonable and beyond your control | $800 |
| Motion to reconsider | The officer misapplied law or policy to the existing record | The office that denied the case | I-290B with a brief; no new evidence | 30 days, 33 if mailed; late motions dismissed | $800 |
| Appeal to the AAO | The form is appealable and you can name a specific error of law or fact | The deciding office first, then the AAO | I-290B, with the brief attached or sent directly to the AAO within 30 days | 30 days, 33 if mailed; late appeals rejected unless the office treats one as a motion | $800 |
| Refile | A filing window is still open, or the facts have changed | A new officer, on a new case | The current edition of the form | That form's own rules | That form's fee; premium processing optional where offered |
Which denials can you appeal? OPT, H-4 and H-1B compared
Fewer than most people assume. USCIS's chart, When to Use Form I-290B, lists Forms I-765 and I-539 as motion only, while I-129 petitions for H-1B, H-2, H-3, L, O, P, Q and R can also be appealed. Your denial notice states which route is open to you.
Table 2. Appeal and motion rights by form, as of 2026-11. Sources: USCIS I-290B chart (updated 04/03/2025), I-290B instructions, 8 CFR 103.3(a)(1)(iii)(B), 248.3(g) and 274a.13(c).
| Denied filing | Appeal to the AAO? | Motion? | Who files the I-290B | If you refile instead |
|---|---|---|---|---|
| I-765, OPT or STEM OPT | No | Yes | You, the applicant | OPT: only inside the 30-day recommendation and 60-day post-program windows. STEM OPT: within 60 days of the DSO recommendation and before the OPT EAD expires |
| I-765, H-4 EAD (c)(26) | No | Yes | You, the applicant | New paper I-765 ($520); no automatic extension for renewals filed on or after 2025-10-30 |
| I-539, H-4 extension or change of status | No | Yes | You, the applicant | New I-539 ($470 paper, $420 online), tied to your spouse's H-1B status |
| I-129 petition, H-1B, L-1 or O-1 | Yes | Yes | The employer only | New I-129; only the 09/09/26 edition from 2026-11-09; a cap-subject case needs a selection notice |
| I-129 approved, but the extension or change of status denied | No | Yes | The employer | Ask the employer's attorney |
| I-129, E-3, H-1B1 or TN | No | Yes | The petitioner | New petition |
| I-140 | Yes | Yes | The petitioner: the employer, or you on an EB-1A or NIW self-petition (a porting beneficiary only in some revocations) | New I-140 |
Can I appeal an OPT denial?
No. 8 CFR 274a.13(c) is blunt: "There shall be no appeal from the denial of the application." Your options are a motion, a new I-765 if both filing windows are still open, a new program or status, or departure; our walkthrough of the first 10 days after an OPT denial covers each one. If your package came back as a rejection rather than a denial, there is no decision to challenge at all; see what a rejection does to your OPT refile window. Only your DSO can enter a new SEVIS recommendation, so contact them the day the notice arrives.
What about H-4 and H-4 EAD denials?
Motion only. For a change of status, 8 CFR 248.3(g) says "There is no appeal from the denial of the application under this chapter," and USCIS's chart lists every I-539 as motion only. As the applicant on your own I-539 and I-765, you can file the I-290B yourself, one per receipt. But H-4 status rests on your spouse's H-1B status, so if the H-1B was the problem, a motion on the H-4 alone usually leaves the cause untouched; an immigration attorney will look at the H-1B case first.
No proposed or final rule ends the H-4 EAD; DHS lists a long-term agenda item (RIN 1615-AD14) with no proposal date.
Why can't I file the I-290B on my H-1B denial?
Because the petition belongs to your employer. Under 8 CFR 103.3, an affected party "does not include the beneficiary of a visa petition," and the instructions say a beneficiary "MAY NOT file an appeal or motion unless specifically permitted by law." Your current or prospective employer, usually through its attorney, chooses between an appeal, a motion and a new petition. For a change-of-employer case, see what happens after an H-1B transfer denial.
Three mechanics matter here:
- The deciding office looks first. It "may treat your appeal as a motion and approve" the petition, the instructions say, but it will not treat an appeal as a motion to reopen unless supporting evidence comes with it.
- Name every error. The I-290B statement must identify "an erroneous conclusion of law or statement of fact," and a ground you do not address may be deemed waived.
- Status is a separate piece. When USCIS approves the petition but denies the extension or change of status, its chart says "you may file a motion but not an appeal."
You cannot appeal an AAO decision to the AAO, though you can file a motion on it.
How long do I have to file Form I-290B?
Generally 30 calendar days from the date of service, or 33 if USCIS mailed the decision, per the I-290B page (updated 10/26/2026). For a mailed decision, the instructions say the date of service "is the date we mailed the decision, not the date you received it," and decisions "are normally mailed the same day they are issued." An appeal of a revoked immigrant-petition approval, such as an I-140, runs on a shorter clock: 15 days, or 18 if mailed.
Form I-290B is not on USCIS's online filing list (updated 10/07/2026), so it is a paper filing that counts as filed when the proper address receives it, not when you mail it. Under PA-2026-15, a paper deadline ending on a weekend or federal holiday rolls to the next business day; our guide to the weekend-deadline policy has more examples. Send it to the address on USCIS's Direct Filing Addresses for Form I-290B page, never directly to the AAO.
Worked timeline: a mailed denial dated Monday, November 2, 2026
Say an H-1B extension petition, the spouse's H-4 extension and the spouse's H-4 EAD are all denied in notices dated Monday 2026-11-02 and mailed that day. That is three receipts, so challenging all three takes three I-290Bs and $2,400 in filing fees (our arithmetic), with the employer filing the H-1B one.
Table 3. Key dates for that example, as of 2026-11.
| Date | What happens |
|---|---|
| Mon 2026-11-02 | Decision date; for mailed notices, also the date of service |
| Tue 2026-11-03 | Day 1 of the count |
| Mon 2026-11-09 | Last postmark for old I-290B addresses; from this date USCIS accepts only the 09/09/26 Form I-129 for any new petition |
| Tue 2026-11-10 | Comments close on the proposal to end the worker 60-day grace period |
| Wed 2026-12-02 | Day 30, the deadline had the notice not been mailed |
| Sat 2026-12-05 | Day 33, a Saturday |
| Mon 2026-12-07 | Last day for a paper I-290B to be received (PA-2026-15) |
The alternative an attorney will price is a new I-129 plus new H-4 filings. On paper, the spouse's new I-539 and I-765 alone cost $990 (our arithmetic), against $1,600 for motions on those two receipts.
Does filing an I-290B let me stay or keep working?
No. Under 8 CFR 103.5(a)(1)(iv), unless USCIS directs otherwise, "the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution of any decision in a case or extend a previously set departure date." Neither the I-290B page nor the instructions say an appeal restores status or work authorization. Plan as if the denial stands.
- F-1 in cap-gap. USCIS's cap-gap page says the extension "will automatically terminate if the student's H-1B petition is denied." The student then has "the standard 60-day grace period" from the denial notice, unless the change of status was denied for a status violation, misrepresentation or fraud. Call your DSO that day.
- STEM OPT. "This automatic 180-day extension ceases once USCIS adjudicates your STEM OPT extension application," says USCIS's STEM OPT page. A motion does not bring it back.
- H-1B workers. 8 CFR 214.1(l)(2) allows a grace period after employment ends "for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter," once per validity period, at DHS's discretion. Ending it is only proposed; see whether the grace-period removal has been approved. Whether a denial leaves you inside that window depends on your facts and your I-94, so ask an attorney.
- H-4 EAD. Under the final rule in effect since 2026-10-14 (challenged; court relief covers seven plaintiffs only), a (c)(26) renewal filed on or after 2025-10-30 gets no automatic extension, so work authorization stops after the card's end date. A pending motion does not change that.
Is it faster to refile than to file a motion?
It can be, when a refile is still allowed. Form I-290B is not on USCIS's premium processing list. A new I-129 can be premium processed ($2,965, 15 business days for most classes), as can an OPT or STEM OPT I-765 ($1,780, 30 business days) and an I-539 change to F, J or M status ($2,075). There is no H-4 premium processing.
For standard filings, the processing-times tool showed on 2026-11-01 that 80% of F-1 student I-765s were completed within 5 months, H-1B extensions within 11.5 months, and H-4 EADs within 6.5 months when filed with the H-4 I-539 versus 17.5 months alone. Check it the day you decide.
Speed is not the whole picture:
- A refile is judged fresh, on current facts and current rules, and PA-2026-05 applies to it too, so a missing document can again mean a denial with no RFE.
- A granted motion to reopen reopens the original proceeding (8 CFR 103.5(a)(4)), so the case keeps its original filing. That can matter when a refile is no longer possible, for example after the OPT windows close; whether a motion fits your facts is a question for your DSO or an attorney.
- Some refiles are impossible. "You can only file an H-1B cap-subject petition if you receive a selection notice for the beneficiary of the petition," USCIS says on its registration page.
Some cases run both at once, a refile to restore the benefit and a motion to correct the record; whether that fits yours is an attorney question.
What changed in 2026 for denied cases
Table 4. Old rule, new rule and what to do, as of 2026-11-01.
| Topic | Before | As of 2026-11-01 | What to do differently |
|---|---|---|---|
| Warning before a denial | Missing initial evidence often drew an RFE or NOID first | PA-2026-05 (in effect, challenged): USCIS may deny without either | File complete; treat the I-290B as possibly your first chance to respond |
| I-290B mailing address | Prior locations | New locations since 2026-10-07; old ones only if postmarked by 2026-11-09 | Check the direct filing addresses page the day you mail |
| H-4 EAD renewals | Timely renewals were extended automatically | No automatic extension for renewals filed on or after 2025-10-30 | Expect no work after the card's end date while a refile or motion is pending |
| Refiled H-1B petitions | 02/27/26 I-129 edition accepted | Scheduled: only the 09/09/26 edition from 2026-11-09 | Use the current edition |
What to do in the first week after a denial
- Download the decision from your USCIS online account or the mailed notice, and write down the notice date, receipt number and whether it says you may file an appeal or a motion.
- Classify the stated reason: evidence you had at filing (motion to reopen or refile), a misread of law or the record (motion to reconsider, or an appeal for an appealable I-129), or a fact that changed after filing (refile).
- Ask your DSO (OPT, STEM OPT, cap-gap, SEVIS) or an immigration attorney (H-1B, H-4) what your status and work authorization are from the decision date, assuming the denial stands.
- Check whether a refile is open: the OPT windows with your DSO, or with the employer's attorney a new I-129 on the 09/09/26 edition and, for a cap case, a valid selection notice.
- Price both routes on Form G-1055: $800 per I-290B per receipt against the new form's fee and any premium processing.
- Mail any I-290B on paper to the address on USCIS's I-290B filing page so it arrives by the deadline. A motion must include all its evidence and a statement on whether the decision is or was the subject of any court case.
- Calendar the follow-up: an appeal filed under Item 1.b needs its brief sent directly to the AAO within 30 calendar days of filing.
Common mistakes
- Counting from the day the envelope arrived. The clock runs from the mailing date.
- Filing an I-290B on a rejection. There is no decision to reopen; fix the package and refile.
- The worker filing on the employer's H-1B petition. Only the employer can.
- Ticking both appeal and motion. USCIS may reject or dismiss the form.
- Mixing up the two motions. Post-filing facts cannot support a motion to reopen, and a motion to reconsider is judged on the existing record.
- Mailing to the AAO or an old address. Old addresses stop working after 2026-11-09.
- Working on the strength of a pending motion. It does not restore work authorization the denial ended.
Frequently asked questions
What is the difference between a motion to reopen and a motion to reconsider?
A motion to reopen brings new facts, supported by documents, that show you were eligible when you filed. A motion to reconsider argues the officer misapplied law or USCIS policy to the evidence already in the record, so it adds no new evidence. Both go on Form I-290B to the office that decided the case, cost $800 on Form G-1055 (edition 10/26/26), and can be combined on one form.
How long do I have to file Form I-290B?
Generally 30 calendar days from the date of service of the decision, or 33 days if USCIS mailed it, and the mailing date counts, not the day it reached you. Form I-290B is a paper filing, so under PA-2026-15 (in effect since 2026-10-23) a deadline ending on a weekend or federal holiday is met by the next business day. Late motions are dismissed, though a late motion to reopen may be excused if the delay was reasonable and beyond your control. Late appeals are rejected unless the deciding office treats one as a motion.
Does filing an I-290B let me stay or keep working?
No. Under 8 CFR 103.5(a)(1)(iv), a motion or a new filing does not stay the decision or extend a departure date, and nothing on USCIS's I-290B page says an appeal restores status or work authorization. Cap-gap ends when the H-1B petition is denied, and the STEM OPT 180-day extension ends once USCIS decides the application. Ask your DSO (F-1) or an immigration attorney (H-1B, H-4) where your status stands from the decision date.
Is it faster to refile than to file a motion?
It can be, when a refile is still allowed. Form I-290B cannot be premium processed, while a new I-129 can ($2,965, 15 business days) and so can an OPT or STEM OPT I-765 ($1,780, 30 business days) as of November 2026. A refile is a new case judged on current facts and rules, and it is not available once an OPT filing window has closed or when a cap-subject H-1B has no selection notice behind it.
Can I appeal an OPT denial?
No. 8 CFR 274a.13(c) says there shall be no appeal from the denial of an employment authorization application, and USCIS's I-290B chart lists Form I-765 as motion only. Your routes are a motion to reopen or reconsider within 30 days (33 if mailed), a new I-765 if your 30-day recommendation and 60-day post-program windows are still open, or a new program or status. Your DSO can confirm the windows.
Sources
- USCIS, Form I-290B, When to Use Form I-290B, Direct Filing Addresses for Form I-290B and the I-290B instructions
- USCIS, Form G-1055 fee schedule and premium processing
- USCIS, filing location and online filing updates and forms available to file online
- USCIS, cap-gap extension, STEM OPT extension and H-1B electronic registration
- USCIS, Administrative Appeals Office, PA-2026-05 and Policy Manual Vol. 1, Part B, Ch. 6
- 8 CFR 103.3, 103.5, 248.3 and 274a.13
- Federal Register, grace-period NPRM and EAD automatic-extension final rule
How we checked this: we read the USCIS I-290B, eligibility-chart, filing-address, online-filing, premium-processing, cap-gap, STEM OPT and H-1B registration pages, the I-290B instructions (05/31/24), Form G-1055 (10/26/26), PA-2026-05, PA-2026-15 and 8 CFR 103.3, 103.5, 214.1, 248.3 and 274a.13 on 2026-11-01 and 2026-11-02.
This is general information, not legal or tax advice; your own notice, I-20 and I-94 govern, and your DSO (F-1, OPT, SEVIS) or a licensed immigration attorney (petitions, appeals, status) should decide what you file.
A denial changes your timeline, not your goals. If you are rebuilding a job search around a refile, a new employer or a new status, F1Jobs can help you focus on employers that sponsor.
Frequently asked questions
What is the difference between a motion to reopen and a motion to reconsider?
A motion to reopen brings new facts, supported by documents, that show you were eligible when you filed. A motion to reconsider argues the officer misapplied law or USCIS policy to the evidence already in the record, so it adds no new evidence. Both go on Form I-290B to the office that decided the case, cost $800 on Form G-1055 (edition 10/26/26), and can be combined on one form.
How long do I have to file Form I-290B?
Generally 30 calendar days from the date of service of the decision, or 33 days if USCIS mailed it, and the mailing date counts, not the day it reached you. Form I-290B is a paper filing, so under PA-2026-15 (in effect since 2026-10-23) a deadline ending on a weekend or federal holiday is met by the next business day. Late motions are dismissed, though a late motion to reopen may be excused if the delay was reasonable and beyond your control. Late appeals are rejected unless the deciding office treats one as a motion.
Does filing an I-290B let me stay or keep working?
No. Under 8 CFR 103.5(a)(1)(iv), a motion or a new filing does not stay the decision or extend a departure date, and nothing on USCIS's I-290B page says an appeal restores status or work authorization. Cap-gap ends when the H-1B petition is denied, and the STEM OPT 180-day extension ends once USCIS decides the application. Ask your DSO (F-1) or an immigration attorney (H-1B, H-4) where your status stands from the decision date.
Is it faster to refile than to file a motion?
It can be, when a refile is still allowed. Form I-290B cannot be premium processed, while a new I-129 can ($2,965, 15 business days) and so can an OPT or STEM OPT I-765 ($1,780, 30 business days) as of November 2026. A refile is a new case judged on current facts and rules, and it is not available once an OPT filing window has closed or when a cap-subject H-1B has no selection notice behind it.
Can I appeal an OPT denial?
No. 8 CFR 274a.13(c) says there shall be no appeal from the denial of an employment authorization application, and USCIS's I-290B chart lists Form I-765 as motion only. Your routes are a motion to reopen or reconsider within 30 days (33 if mailed), a new I-765 if your 30-day recommendation and 60-day post-program windows are still open, or a new program or status. Your DSO can confirm the windows.