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I-130 denied: how the appeal, motion and refiling rules work, with deadlines and fees

An I-130 denial must state its specific reasons and the route for review (8 CFR 103.3(a)(1)). Family-petition denials fall under the Board of Immigration Appeals (8 CFR 1003.1(b)(5)), where the notice of appeal is due within 30 days of service on Form EOIR-29 with a $1,060 fee. A new I-130 costs $675.

An I-130 denial ends a stage, not necessarily the case. The regulations give the petitioner three kinds of next step: ask a higher body to review the decision, ask the office that decided to look again, or file a new petition. Each has its own deadline, fee and limits, and each is available in some situations and closed in others.

This page lays out those rules as at 9 October 2026, from the eCFR: what the denial notice must contain, which body hears an appeal of a family-based petition denial, the 30-day periods, the fees, and what 8 CFR 204.2 says about refiling after particular kinds of denial. It does not tell anyone which step to take, whether an appeal is likely to succeed, or whether a new petition would be treated differently. Those turn on the stated reasons for the denial and the file, and only an attorney or DOJ-accredited representative can advise on them before USCIS.

One point of difference from what many websites say: they describe every USCIS denial as appealable on Form I-290B for $800. For an I-130 the regulations point to a different body, form and fee, as set out below.

What the denial notice has to say

8 CFR 103.3(a)(1)(i): "When a Service officer denies an application or petition filed under § 103.2 of this part, the officer shall explain in writing the specific reasons for denial." For spousal petitions, 8 CFR 204.2(a)(3) adds that if the petition is denied "the petitioner will be notified of the reasons for the denial and of the right to appeal in accordance with the provisions of 8 CFR 3.3" (the Board's notice-of-appeal rule, now 8 CFR 1003.3).

Where a decision may be appealed, 103.3(a)(1)(iii)(A) says "the official making the decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form." The notice is therefore the first place to look for which route and which form apply, and it fixes what was decided and why.

Who may challenge it. Only the "affected party" can appeal or move. 103.3(a)(1)(iii)(B) defines that as "the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition." In an I-130, the petitioner holds the right. An appeal by someone not entitled to file it "must be rejected as improperly filed", and "any filing fee the Service has accepted will not be refunded" (103.3(a)(2)(v)(A)).

Representation. An affected party "may be represented by an attorney or representative in accordance with part 292". An appeal filed by a representative without a properly executed Form G-28 is "considered improperly filed" (103.3(a)(2)(v)(A)(2)).

Where "reasons" matter. Review is limited by what the decision said. A body that hears an appeal looks at "any erroneous conclusion of law or statement of fact" the appeal identifies (103.3(a)(1)(v); 1003.3(b)). That is why a vague notice of appeal fails (below).

Which body hears an I-130 appeal

Two appellate routes exist in the regulations, and the I-130 sits on one of them.

The Board of Immigration Appeals. 8 CFR 1003.1(b)(5) lists, among the Board's appellate jurisdiction, "decisions on petitions filed in accordance with section 204 of the act (except petitions to accord preference classifications under section 203(a)(3) or section 203(a)(6) of the act, or a petition on behalf of a child described in section 101(b)(1)(F) of the act), and decisions on requests for revalidation and decisions revoking the approval of such petitions, in accordance with section 205". The I-130 is a section 204 petition, so its denial falls within that list unless it is one of the stated exceptions: the petitions for the two preference categories named (sections 203(a)(3) and 203(a)(6)) and a petition for a child described in section 101(b)(1)(F). The denial notice is where the category is confirmed.

The Administrative Appeals Unit. 103.3(a)(1)(ii) says decisions "under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in § 103.1(f)(2)". In practice that means appeals taken on Form I-290B. 8 CFR 106.2(a)(16) puts the I-290B fee at $800 "for appealing a decision under the immigration laws in any type of proceeding over which the Board of Immigration Appeals does not have appellate jurisdiction, and for filing a motion to reopen or reconsider a USCIS decision".

Which category a particular I-130 falls into is set by the preference category on the petition. The denial notice is required to say. A petitioner who cannot tell from the notice should ask the representative of record or the office that issued it, because filing the wrong form with the wrong fee is a rejection risk the regulation attaches no refund to.

Route 1: the appeal to the Board (Form EOIR-29)

The rules for a Board appeal from a DHS officer's decision are in 8 CFR 1003.3 and 1003.8.

  • Form and place. "An appeal from a decision of a DHS officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR-29) directly with the DHS office having administrative control over the record of proceeding" (1003.3(a)(2)). It is filed with the USCIS office that has the file, not with the Board.
  • Deadline. "Within 30 days of the service of the decision being appealed" (1003.3(a)(2)). The appeal "is not properly filed until it is received at the appropriate DHS office, together with all required documents, and the fee provisions of § 1003.8 are satisfied." Where the decision was served by mail, 8 CFR 103.8(b) adds three days to a prescribed period that runs from service.
  • Fee. The EOIR-29 fee is $1,060 in 8 CFR 1103.7(b)(1) as at 9 October 2026 (an EOIR statutory fee of $110 plus $950). Under 1003.8(a)(4)(ii), for an appeal from a DHS officer's decision the fee "shall be paid to the Department of Homeland Security". The Board "has the discretion to waive a fee" on a showing of inability to pay, requested on Form EOIR-26A with a declaration under penalty of perjury (1003.8(a)(3)). Check the EOIR fee notice before paying.
  • Representation. A practitioner appearing at the Board must enter an appearance on Form EOIR-27 (1003.3(a)(3), 1003.38(g)).
  • Statement of the basis of appeal. The notice must identify the reasons: "the findings of fact, the conclusions of law, or both, that are being challenged" and, where a legal question is presented, "supporting authority must be cited" (1003.3(b)).
  • Briefs. Briefs on an appeal from a DHS officer "shall be filed directly with DHS in accordance with the instructions in the decision". Both sides get 21 days unless the officer sets a shorter period; the extension for good cause is available "upon written request" (1003.3(c)(2)).
  • Summary dismissal. The Board may dismiss an appeal that fails "to specify the reasons for the appeal on Form EOIR-26 or Form EOIR-29", or where the party says a brief will be filed and none comes (1003.1(d)(2)(i)). A practitioner who files a summarily dismissed appeal may face discipline for frivolous behaviour.

The 10-day appeal deadline in 8 CFR 1003.38(b) is for appeals of immigration judge decisions on Form EOIR-26. It is not the deadline for a USCIS decision on an I-130.

Route 2: the motion to reopen or reconsider

A motion asks the office that decided to look at the case again. 8 CFR 103.5(a) sets the rules for USCIS decisions, with a carve-out: "Except where the Board has jurisdiction and as otherwise provided in 8 CFR parts 3, 210, 242 and 245a". Because an I-130 denial sits within the Board's list, whether a motion on it goes to USCIS under 103.5 or follows a different procedure should be settled from the denial notice and the current Form I-290B instructions on uscis.gov before anything is filed. This page does not resolve that.

If 103.5 applies, the rules are:

  • Deadline. "Within 30 days of the decision that the motion seeks to reconsider" or reopen. A late motion to reopen "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" (103.5(a)(1)(i)). There is no equivalent excuse for a motion to reconsider.
  • Form and fee. Form I-290B, with a nonrefundable fee under 8 CFR 106.2 (103.5(a)(1)(iii)(B)). The fee is $800, and it is "the same for appeal of or motion on a denial of a benefit request with one or multiple beneficiaries" (106.2(a)(16)(i)).
  • Motion to reopen. It "must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence" (103.5(a)(2)).
  • Motion to reconsider. It "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". It must also show the decision was incorrect on the evidence of record when decided (103.5(a)(3)).
  • Statement about court proceedings. The filing must state "whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding" (103.5(a)(1)(iii)(C)).
  • No stay. A motion does not "stay the execution of any decision in a case or extend a previously set departure date" unless the Service directs otherwise (103.5(a)(1)(iv)).
  • Not both at once. 8 CFR 103.2(a)(7)(iv) provides that "a motion to reopen or reconsider and an appeal that is filed on the same decision will be considered a duplicate request", and USCIS may reject one.
  • Appeal treated as a motion. The deciding official has 45 days from receipt of an AAU appeal to treat it "as a motion to reopen or reconsider and take favorable action" (103.3(a)(2)(iii)), and an untimely appeal that meets the requirements of a motion "must be treated as a motion" (103.3(a)(2)(v)(B)(2)).

Fee waiver. The I-290B fee can be waived "when there is no fee for the underlying application or petition or that fee may be waived" (106.3(a)(3)(ii)(D)). The I-130 carries a $675 fee, and whether any waiver applies to it is something to check in 106.3 and the form instructions, not to assume.

Route 3: a new petition

A new I-130 is a new filing: $675 under 8 CFR 106.2(a)(6), a new receipt, and the same evidence rules in 204.1(g) and 204.2 as the first. Our page on the I-130 filing fee covers the fee. Some denials carry rules about what can be refiled and when:

  • Prior marriage of a permanent-resident petitioner. A petition denied because the petitioner could not show by clear and convincing evidence that an earlier marriage was genuine "shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence" (204.2(a)(1)(i)(C)).
  • Marriage during proceedings. A denial because the marriage occurred during exclusion, deportation or removal proceedings "shall be without prejudice to the filing of a new petition after the beneficiary has resided outside the United States for the required period of two years following the marriage", and without prejudice to a new petition or motion to reopen if the proceedings end "other than by the beneficiary's departure", or if the petitioner establishes the bona fide marriage exemption (204.2(a)(1)(iii)(D)). The Board's decision on the exemption denial "will constitute the single level of appellate review established by statute" (204.2(a)(1)(iii)(E)).
  • Fraud finding. Section 204(c) of the Act, as 204.2(a)(1)(ii) puts it, bars approval of a petition for an alien who has attempted or conspired to enter a marriage to evade the immigration laws where "substantial and probative evidence" is "contained in the alien's file", "regardless of whether that alien received a benefit". The regulation does not provide a waiting period after which that bar lapses. A person in this position should not file anything without a lawyer's assessment, because a new petition for the same beneficiary faces the same finding.
  • Abandonment. If the denial was for failing to respond to an RFE or NOID, a new petition "with a new fee" may be filed but the old petition's "priority or processing date" cannot be applied (103.2(b)(15)). For family-preference categories, a lost priority date means a later place in the queue.

The three routes side by side

Facts only, all from the regulations cited. This is not a ranking and does not say which fits a case.

| | Appeal (Board) | Motion to reopen or reconsider | New I-130 | |---|---|---|---| | Form | EOIR-29 (1003.3(a)(2)) | I-290B (103.5(a)(1)(iii)) | I-130 | | Deadline | 30 days from service (add 3 if mailed, 103.8(b)) | 30 days; late reopening may be excused (103.5(a)(1)(i)) | None stated; some denials set waiting rules (204.2(a)(1)) | | Fee | $1,060 (1103.7(b)(1)); waiver at Board's discretion | $800 (106.2(a)(16)) | $675 (106.2(a)(6)) | | Who decides | The Board | The USCIS official who made the decision | USCIS, on a new record | | What can be added | Brief; the appeal must identify errors (1003.3(b)) | New facts with evidence, or legal error shown (103.5(a)(2), (3)) | Whatever the new petition shows | | Same decision, two routes | An appeal and a motion on the same decision are duplicate requests (103.2(a)(7)(iv)) | Same | A new petition is a separate filing |

Departure. For people in removal proceedings, departing the US "prior to the taking of an appeal" is a waiver of the right to appeal in that proceeding (1003.3(e)). That provision concerns persons who are the subject of deportation proceedings, and applying it to anyone's situation is a legal judgment.

What the table cannot do. It cannot say whether the denial was right, whether a motion's new facts will matter, or how long any route takes. The regulations set no decision deadlines for these reviews.

Where I-130 denial responses go wrong, from the rules

The documented failure points:

  • Missing the 30-day period. An untimely appeal "must be rejected as improperly filed" with no fee refund, though it may be treated as a motion if it meets those requirements (103.3(a)(2)(v)(B)).
  • Filing a form meant for a different route, or paying the wrong fee.
  • A beneficiary signing the appeal. The beneficiary is not an "affected party".
  • A representative's appeal without a Form G-28 (or an EOIR-27 at the Board).
  • A notice of appeal that does not identify the factual or legal findings challenged, leading to summary dismissal.
  • Saying a brief will be filed and never filing it.
  • Filing both an appeal and a motion on the same decision.
  • A motion to reopen with no new facts, or a motion to reconsider with no showing of incorrect application of law or policy.
  • Refiling in a category the denial closed, such as an LPR-spouse petition inside the five-year window, without the evidence the regulation requires.
  • Assuming a new petition keeps the old priority date.

Who may help. The choice among these routes depends on the reasons stated in the denial and the contents of the file. That is legal advice. Only attorneys and DOJ-accredited representatives of recognized organizations, plus the few other categories in 8 CFR 292.1, may give it, and a notario or consultant who accepts money to file an appeal is outside what the regulations allow. USCIS says notaries "are not attorneys and cannot represent you in legal matters, including immigration cases".

Finding a licensed attorney or accredited representative

Migratio's directory lists immigration attorneys and DOJ-accredited representatives. Listings are shown in a neutral order with factual filters (state, language, attorney or accredited representative). Migratio does not recommend, rank or match any lawyer, and it is not a lawyer referral service. Check any listing yourself against the state bar or the EOIR roster before you sign anything.

See attorneys and accredited representatives in the directory.

Notaries public, notarios and immigration consultants are not lawyers and cannot give immigration legal advice. Only a licensed attorney or a DOJ-accredited representative can.

Migratio is not a law firm and does not give legal advice. Only a licensed attorney or a DOJ-accredited representative can advise you.

Questions people ask

How long do I have to appeal a denied I-130?

30 days from service of the decision (8 CFR 1003.3(a)(2) for a Board appeal; 103.3(a)(2)(i) and 103.5(a)(1)(i) for the I-290B routes). Three days are added where the decision was served by mail (103.8(b)). The 10-day period in 1003.38(b) applies to immigration judge decisions, not USCIS decisions.

Is the I-130 appeal done on Form I-290B?

Family petitions under INA 204 are listed in the Board's appellate jurisdiction (8 CFR 1003.1(b)(5)), and the appeal is on Form EOIR-29 filed with the DHS office. The I-290B fee in 106.2(a)(16) is for matters "over which the Board of Immigration Appeals does not have appellate jurisdiction" and for motions. The denial notice must state the route.

How much does it cost to appeal an I-130 denial?

$1,060 for Form EOIR-29 under 8 CFR 1103.7(b)(1), paid to DHS (1003.8(a)(4)(ii)). A motion on Form I-290B is $800 (106.2(a)(16)). A new I-130 is $675 (106.2(a)(6)). Check the current fee schedule before paying.

Can the beneficiary file the appeal?

No. The "affected party" excludes "the beneficiary of a visa petition" (8 CFR 103.3(a)(1)(iii)(B)). The petitioner has standing, and an appeal filed by someone not entitled to file it is rejected without a refund.

Can I just file a new I-130 after a denial?

The regulations do not bar a new petition in general, and some denials say expressly that they are without prejudice to a new petition (8 CFR 204.2(a)(1)(i)(C), (iii)(D)). A fraud finding under INA 204(c) is different: the regulation bars approval of any petition for that beneficiary where the evidence is in the file (204.2(a)(1)(ii)).

Will I lose my place in line if I refile?

For a withdrawn or abandoned petition the regulation says the old priority or processing date "may not be applied to a later application petition" (103.2(b)(15)). Whether a particular denied petition's date can be kept turns on the category and facts, and needs a lawyer's assessment.

Sources

Last checked 2026-10-09.

Related guides

  • I-130 RFE: what the regulations require, the 12-week limit and how a response works — An I-130 Request for Evidence asks for proof the regulations in 8 CFR 204.1 and 204.2 require: the petitioner's status, the claimed relationship and, for spouses, proof every earlier marriage ended. The response period is never more than twelve weeks and cannot be extended (8 CFR 103.2(b)(8)(iv)).
  • Notice of Intent to Deny (NOID): the 30-day limit, how it differs from an RFE and what comes next — A Notice of Intent to Deny names the reasons USCIS proposes to deny a case and sets a response date that cannot be more than thirty days away. The regulation says additional time "may not be granted" (8 CFR 103.2(b)(8)(iv)). The options are a full response, a partial response with a request for a decision on the record, or withdrawal.
  • Form I-290B: how appeals and motions on a USCIS decision work under 8 CFR 103.3 and 103.5 — Form I-290B is the notice of appeal or motion for USCIS decisions that the Board of Immigration Appeals does not review. The fee is $800 (8 CFR 106.2(a)(16)) and the deadline is 30 days from service of the decision (8 CFR 103.3(a)(2)(i) and 103.5(a)(1)(i)). Some decisions, such as an I-485 denial or an I-130 denial, are handled differently.
  • Form I-130 filing fee 2026: what it is and who pays — The USCIS fee for Form I-130, Petition for Alien Relative, is $675 on paper as at 9 October 2026 (8 CFR 106.2(a)(6)), whichever relative the petition is for. It cannot be waived, filing fees are generally non-refundable, and the I-130 is not on the 16 October 2026 increase list.
  • Do I need a lawyer for a marriage green card? — No rule requires one. A spouse filing inside the US pays $675 for the I-130 and $1,440 for the I-485 (age 14+). If the green card is granted on a conditional basis, the I-751 must be filed in the 90 days before its second anniversary, or permanent residence ends automatically.
  • Who can legally give US immigration advice? — Attorneys in good standing and DOJ-accredited representatives of recognized non-profits can advise and represent you; a few narrow categories can appear unpaid. Notaries, notarios and immigration consultants cannot give immigration legal advice. Form preparers may only fill in blanks for a nominal fee.