AAO Finally Correctly Instructs NBC to Follow the Regs on N-600 Decisions

by Joseph P. Whalen

In a dismissed appeal dated October 27, 2022[1], AAO finally correctly instructed the National Benefits Center and hopefully all Field Offices encountering a similar case to actually follow the N-600 specific regulations. I must be blunt; it is long overdue that someone reminded adjudicators to do their damn jobs properly from the outset. The case that was sent back should never have been forwarded to AAO in the first place. Adjudicators have failed to adhere to the USCIS Policy directing them to thoroughly review appeals prior to forwarding them to AAO and handle whatever they can at the initial stage. The AAO Practice Manuel Chapter 3 “Appeals” includes the following:

3.9 Initial Field Review

Initially, the USCIS field office that denied the immigration benefit request will review the appeal and determine whether to take favorable action and grant the benefit request.[87]

During this initial field review, the field office may:

  • Treat the appeal as a motion to reopen or reconsider and approve the application or petition; or
  • Forward the appeal and the related record of proceedings to the AAO. 

The initial field review should be completed within 45 days.

For more information about initial field review, see USCIS Policy Memorandum PM-602-0124, Initial Field Review of Appeals to the Administrative Appeals Office (PDF, 297.5 KB) (Nov. 4, 2015).

Let’s take a closer look at the cited Policy Memo, shall we? USCIS Policy Memorandum PM-602-0124, Initial Field Review of Appeals to the Administrative Appeals Office (PDF, 297.5 KB) (Nov. 4, 2015) states:


The regulation at 8 CFR 103.3 governs USCIS processing of appeals to the AAO. The Department of Homeland Security (DHS) plans to update and revise this regulation. In the interim, USCIS is issuing this PM to promote accurate and efficient processing of appeals to the AAO.


  1. Overview of Initial Field Review

Appeals to the AAO are filed on Form I-290B, Notice of Appeal or Motion. The appeal first undergoes an intake procedure to make sure that the appeal is complete and any required filing fees have been collected. After intake, the USCIS field office that made the unfavorable decision conducts an “initial field review” (IFR) of the appeal. IFR is governed by 8 CFR 103.3(a)(2)(ii)-(v).


III. Scope of IFR

The IFR of timely appeals should be of sufficient depth and detail to enable the field office to “decide whether or not favorable action is warranted.” Similarly, the review of an untimely appeal should be sufficient to adequately determine whether it meets the requirements of a motion.

The regulations do not define “favorable action,” but the term is commonly understood to mean that the field office reverses its original decision and grants the underlying benefit request. Therefore, USCIS considers “favorable action” to mean the approval of the application or petition being appealed.

While IFR may result in the approval of a benefit request and make appellate review by the AAO unneccesary, the IFR process cannot undermine an affected party’s procedural right to AAO review, when applicable. Appeals and motions are separate post-adjudication remedies governed by different authorities. An appeal asks an appellate authority to review an unfavorable decision, whereas a motion seeks review by the same authority that issued the latest decision in the proceeding. A field office may treat a timely-filed appeal as a motion if favorable action is warranted, or treat an untimely appeal as a motion if it meets the requirements of a motion. However, the AAO is the proper authority to adjudicate the Form I-290B appeal itself.

Therefore, except in very limited circumstances, a field office may not reject, dismiss, or otherwise terminate a Form I-290B appeal. This includes appeals that have issues relating to lack of standing, untimeliness, lack of a properly executed Form G-28, improper signatures, failure to specifically identify an error, or a request for withdrawal.

Initial Field Review requires that that the adjudicator actually review the evidence submitted and make an assessment of it. While the memo cites the general appeals and motions regulations, the AAO Decision indicates that the underlying NBC N-600 Denial Decision cited to the N-600 specific regulations also.

The Director of the National Benefits Center rejected the instant Form N-600, concluding that because the Applicant previously filed a Form N-600 (which was denied in 2005) she was not eligible to file another one pursuant to the regulations at 8 C.F.R. § 341.5( e ), which provide that after an application for a certificate of citizenship has been denied and the time for appeal has expired, U.S. Citizenship and Immigration Services will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion to reopen or reconsider. The Director further explained that because the period to appeal the 2005 denial of the Applicant's initial Form N-600 has expired, she could file a motion to reopen or reconsider the adverse decision.

The Applicant obviously checked the wrong box on the I-290B for “Appeal” rather than “Motion”. This is a common mistake by unrepresented applicants and petitioners who are not attorneys (and many actual attorneys). The subsequent action taken in forwarding the case to AAO strongly suggests that the NBC adjudicator did not follow proper procedures and regulations. AAO noted the following:

The matter is now before us on appeal from the Director's decision rejecting the Applicant's second Form N-600 filing. The Applicant asserts that she did not timely appeal the denial of her first Form N-600 because she was a minor at the time. She submits additional evidence in support of her citizenship claim, including, her father's Certificate of Naturalization, and documents to establish that she resided in her father's custody in the United States as a lawful permanent resident before she turned 18 years of age. The record also contains a copy of the Applicant's U.S. passport issued to her by the U.S. Department of State in March 2020.

OMG! That sure seems like gross incompetence to me! USCIS is once again in need of remedial adjudications training! Due to the mishandling of the case by NBC, AAO’s hands were tied. They explain it thusly:

We acknowledge the Applicant's explanation of the untimely appeal filing and submission of additional evidence. However, we lack jurisdiction to review the 2005 denial of her first Form N-600, as neither the Act nor the regulations give us authority to accept and consider an appeal that has been filed late. 8 C.F.R. § 103.3(a)(2)(v)(B)(l). Furthermore, as the Director rejected the Applicant's second Form N-600, there is no merits-based decision for us to review. 8 C.F.R. § 103.2(a)(7)(ii). Accordingly, we must dismiss the Applicant's appeal.

Thankfully, AAO did not end their decision there. AAO correctly instructed the adjudicator on the proper actions to take upon return of the case. They could have but did not rub their noses in the fact that they should have done it prior to sending the file. I will not be so kind. AAO was nice enough to put it this way:

Nevertheless, the regulations at 8 C.F.R. § 103.3(a)(2)(v)(B)(2) provide that if an untimely appeal meets the requirements of a motion to reopen as described in 8 C.F.R. § 103.5(a)(2) or a motion to reconsider as described in 8 C.F.R. § 103.5(a)(3), the appeal must be treated as a motion, and a decision must be made on the merits of the case.

The official having jurisdiction over a motion is the official who made the last decision in the proceeding, in this case the Director of the National Benefits Center. See 8 C.F.R. § 103.5(a)(l)(ii). We will therefore return the matter to the Director. If the Director determines that the late appeal meets the requirements of a motion, the motion shall be granted and a new decision will be issued.

AAO was too polite in saying “If …. the late appeal meets the requirements…” I am pointing out that it appears obvious from the underlined portions of the excerpt above that AAO did review the evidence and characterized it as having in fact met the requirements for issuance of a certificate. I will point out that since the actual form being processed is the I-290B, it deserves a Notice of Decision discussing the evidence and admitting the mistake rather than simply sending a Certificate of Citizenship, alone. In other words, eat crow and don’t cop out! The core of the N-600 regulations pertaining to appeals and motions have been in effect since the 1980s. It is high time that the Officers assigned to adjudicate these forms have the proper training and have these regulations thoroughly digested. It seems to be a case of poor training of not only the adjudicators but their supervisors as well. USCIS needs to be reminded of this fact. To practitioners of immigration law, please do all you can to make sure USCIS is encouraged to do this ASAP.


About The Author

Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.