For many talented foreign nationals seeking a fast path to a U.S. green card, the EB-1A extraordinary ability category offers a promising route.
With its flexible criteria and lack of a job offer requirement, the EB-1A enables those with sustained national or international acclaim in the sciences, arts, education, business, or athletics to self-petition for permanent residence.
But what if, despite your extensive documentation and compelling evidence, your EB-1A petition is still denied by USCIS? Is it the end of the road for your green card dreams? Not necessarily.
A denied EB-1A petition, while disheartening, does not have to derail your plans. There are still options available to you.
An EB-1A denial is not the same as being found ineligible for this classification. The officer reviewing your case has simply determined that the evidence submitted was not sufficient to establish your eligibility. However, it may be possible to overcome the denial with the right approach.
Here are the steps you can take if your EB-1A petition is denied:
1. Review the Denial Notice Carefully
When you receive an EB-1A denial, the first thing to do is to read the decision carefully. The denial notice will explain why USCIS concluded you did not demonstrate eligibility. It’s critical to understand exactly where your case fell short in the eyes of the adjudicator.
Some common reasons for EB-1A denials include:
- Not meeting at least 3 out of the 10 listed criteria for extraordinary ability
- Insufficient documentation for the criteria you claimed to meet
- Failure to show you plan to continue working in your field of expertise
- Not demonstrating your achievements have been recognized in the field
- Overall evidence did not establish you are one of the small percentage at the very top of your field
- Evaluate your options for challenging the denial
Based on the reasons provided for the denial, you have three options for fighting back:
- File a motion to reopen or reconsider with USCIS
- File an appeal with the Administrative Appeals Office (AAO)
- File a lawsuit against USCIS in Federal District Court
Motion to Reopen
A motion to reopen asks USCIS to reexamine your case based on new facts and evidence that was not available at the time of filing.
A motion to reconsider points out an error of law or fact in the original decision and requests that USCIS reverse its prior decision based on the existing record. Both types of motions must be filed within 90 days of the denial.
Appeal to the Administrative Appeals Office (AAO)
On the other hand, an appeal to the AAO allows an independent review of the entire case record. Your appeal brief can argue that the adjudicator misapplied the law or failed to consider all relevant evidence properly. There is a 30-day deadline for AAO appeals.
Work with your immigration lawyer to assess which option makes strategic sense in your case based on the reasons for denial. Our experienced EB-1A attorney can evaluate the strengths and weaknesses of each approach.
File a Lawsuit in Federal District Court
If administrative remedies have been exhausted, you may have the option to file a lawsuit against USCIS in federal district court. This approach can be particularly effective if you believe USCIS made a clear error of law or abused its discretion in denying your petition.
However, litigation is also more costly and time-consuming than administrative remedies. Our attorneys can help you weigh the pros and cons of this option based on the specifics of your case.
2. Gather Additional Evidence
Start working immediately to enhance your EB-1A case with supplementary evidence. Your attorney can advise you on the types of documentation needed to bolster your credentials and overcome the shortcomings USCIS noted.
Some ideas for strengthening your case include:
- New reference letters from high-profile experts in your field attesting to your impressive accomplishments and standing
- Recently published material about you and your work from major media outlets, industry publications, or scholarly journals
- Invitations for you to judge the work of others in your area of expertise
- Evidence of recent honors, awards, or other accolades received
- Documentation of significant new achievements, discoveries, or contributions to your field
- Proof that your scholarly articles or other publications have been widely cited
- Corroborating evidence that you have played a leading or critical role for organizations with a distinguished reputation
- Updated data showing your high salary/remuneration relative to others in the field
By introducing powerful new exhibits and testimonials, along with a well-reasoned legal brief, you may be able to persuade USCIS or the AAO to reverse the original denial.
3. Consider Re-filing the Petition
If you determine your case would be difficult to overturn through a motion or appeal, another option is to re-file the EB-1A petition. With this approach, you start over from the beginning. There is no limit on how many times you can file an EB-1A petition.
Re-filing provides a chance to enhance your submission with additional evidence, beef up weaker aspects of the case, and present a revamped petition. If you have garnered impressive new achievements since the original EB-1A submission, re-filing allows you to showcase this strengthened profile.
The drawback is that re-filing requires payment of a new filing fee and it may take months to get a decision. Discuss the costs and benefits of re-filing versus challenging the denial with your attorney.
4. Explore Alternative Visa Options
Finally, if challenging the denial or re-filing the EB-1A petition are not viable solutions, it may be time to pivot to a “Plan B.”
Consult with your immigration lawyer about other potential visa pathways based on your qualifications, like:
- EB-1B for outstanding researchers and professors
- Requires a permanent job offer from a U.S. employer.
- Must demonstrate international recognition in your academic field.
- EB-2 with a national interest waiver
- Requires advanced degree or exceptional ability.
- Must demonstrate that your work is in the national interest.
- No job offer or labor certification is required.
- EB-2 through PERM Labor Certification:
- Requires a job offer and labor certification process.
- Employer must demonstrate no qualified U.S. workers are available for the position.
While these categories have different eligibility criteria than the EB-1A, you may be able to re-purpose some of the evidence from your original petition. The key is to work with an attorney to strategize the best way forward.
5. Work With an Experienced EB-1A Immigration Lawyer
If you’ve invested extensive time, money, and effort into putting together a strong EB-1A case, a denial can feel devastating. But don’t despair. An initial no from USCIS does not have to be the final word on your petition.
At The Alagiri Immigration Law Firm, we offer:
- In-depth analysis of denial reasons
- Strategic planning for your best path forward
- Expert preparation of motions, appeals, or new petitions
- Ongoing support throughout the process
As immigration attorney Priya Alagiri notes:
The most important thing is not to give up on the first roadblock. With perseverance, strategic thinking, and legal guidance, you can continue to pursue your American dreams.
Let The Alagiri Immigration Law Firm help you get back on the path to permanent residence. Contact us to schedule a consultation and start charting your next steps after an EB-1A denial.
