EB-1A Petition Denied? Don't Despair! My Insights on Your Next Steps After an Employment-Based Setback

It's always a tough moment when you receive that dreaded denial notice from USCIS. You've poured your time, effort, and resources into your immigrant petition, and to have it denied can feel like a devastating setback.

Today, let's talk about what comes next after your petition was denied. While my insights often stem from my work with EB-1A petitions, the strategies and principles we'll discuss apply EB-1B and EB-2 I-140 as well.

Understanding Your Situation: The I-140 Denial

When we're discussing a green card process, specifically an I-140 petition that has been denied, the good news is that in most cases, your underlying non-immigrant status (if you have one) isn't jeopardized. This means you're not typically in an immigration emergency, but you are undoubtedly left wondering: "What do I do now?"

Many people's first instinct, upon seeing the denial notice, is to focus on the option to appeal. The notice often specifies a short timeframe— 33 days—to file an appeal, leading many to believe this is the best course of action, or at least the think you should try first before you lose the opportunity. However, my experience tells a different story.

The Appeal: Often a Road to Nowhere

In most cases, pursuing an appeal is a massive waste of your time and hard-earned money. Why? Because the chance of actually getting the initial decision reversed through an appeal is incredibly low – well under 10 percent.

In fact, in many cases you'd have a better chance of success if you simply refiled the exact same petition you submitted before, without making a single improvement. Your odds of winning on that subsequent filing would likely exceed 10 percent. This brings me to what I do think you can and should do.

My Recommended Path: Strategic Refiling

For many, the most effective and often easiest path forward after a denial is to strategically refile your I-140 petition. Consider this: Before your petition was denied, you likely received a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). This means you probably already gathered new evidence, thought deeply about your case, and put your very best foot forward in your response.

You now possess a wealth of material: your initial filing, plus your detailed response to the RFE or NOID. This isn't a loss; it's a foundation. You have a tremendous amount of work to leverage, and this is your prime opportunity to reformat and enhance it into something new and better.

Why a Denial Isn't an Indictment of Your Case:

A denial doesn't inherently mean your case wasn't strong or your qualifications weren't sufficient. It simply means you failed to convince one specific person – the adjudicator – to approve it. That doesn't mean the next adjudicator wouldn't approve it. Sometimes, you can try again without major changes and achieve a different result.

However, I've observed a significant shift in how USCIS is reviewing complex petitions like EB-1 and EB-2 NIW, and I recognize the power of style and formatting to make a petition stronger.

The "old school" approach of submitting lawyerly, long-form letters is simply not convincing today's USCIS adjudicators as well as it did in the past. They don't seem to be paying enough attention. Although USCIS filing fees are steep, they aren't being invested to staff adequately. When you send USCIS a dense 50-page support letter with 700 pages of exhibits, are you expecting your adjudicator to read it all the way through? That's a fantasy.

Here's the harsh reality of their environment:

• They are in a hurry. Adjudicators are under immense pressure to process cases quickly. Steep filing fees don't equate to a relaxed and flush office environment.
• They don't need to say "yes" to you. They face no negative repercussions or "blowback" if they issue a denial. Unlike a consular officer, they don't even have to look you in the eye and see your disappointment.
• Confusion or boredom leads to denial. If a USCIS adjudicator finds your filing confusing, overwhelming, or boring, they don't need to double down and invest more brainpower and time. If your petition doesn't resonate quickly and clearly, a denial is the easiest path.

I acknowledge how incredibly insulting this feels when it's your life's work, your career, or your family's future on the line. It doesn't feel fair. You've paid significant fees—especially if you invested an extra $2,805 for Premium Processing—and you believe you've purchased their careful attention.

Public vs. Private Sector Mindset: A Crucial Distinction

No matter how much money USCIS collects in filing fees, adjudicators are not paid per case, nor do they get paid more for working harder or achieving different results. In the public sector, there's a disconnect between the revenue generated and the compensation or performance incentives given to the workers.

In the private sector, many are accustomed to a profit-driven mindset: if you're more efficient, if your work is better, if you get more done, the company makes more money, and that typically benefits you (e.g., bonuses, raises, job security). This isn't the mindset when working for the federal government. An adjudicator's pay and their performance or results aren't closely correlated. They're going to get paid the same regardless of productivity or quality of their work, and they often aren't even allowed to work overtime without special permission and budget approval.

So, just because USCIS collects a lot of your money does not mean they've invested that time and attention into carefully reading your case. Therefore, when your case loses, it is not a total indictment of everything you filed or your career achievements. You could refile it based on all the same underlying information about you, and with the right strategic adjustments, you can win.

What Strategic Refiling Involves:

• Reformatting for Clarity: Make your petition incredibly easy to read and understand. Think clear headings, bullet points, concise paragraphs, and bolding key evidence. Would your filing make sense to a 12-year-old reader? What about to you elderly grandparents who have no idea what you do at your job?
• Emphasizing Key Arguments: Highlight the most compelling aspects of your case, ensuring they jump off the page.
• Addressing Prior Feedback: While you might not change the core evidence, use the RFE or NOID as a guide to see where the previous adjudicator struggled to understand or accept your arguments, and reframe them for clarity.

Considering Federal Litigation: A Powerful but Complex Option

Beyond appeals and refiling, there's another avenue: federal litigation. This can be a very effective solution, but it's a decision that requires careful consideration (and it could set precedent well beyond your own case).

Key Considerations for Litigation:

• Requires Consent: If a company sponsored your petition, both the beneficiary and the petitioner (the company) must agree to pursue federal litigation. As the beneficiary, you cannot initiate this on your own if it was a company-sponsored petition.
• Potentially Fast Resolution: For the right case, litigation can indeed reverse your results swiftly. Federal courts often push USCIS to re-examine cases more carefully.
• "A Whole Other Can of Worms": This path involves significant legal complexity, potentially high costs, and a different set of procedural rules than administrative appeals or refiling. It's a serious step that should be explored with an attorney experienced in federal court immigration matters (which may or may not be the same lawyer or firm that handled the petition filing).

Don't Give Up! Your Options Are Real

Receiving a USCIS denial is disheartening, but it doesn't have to be the end of your green card journey. While an appeal is generally a poor investment, strategically refiling your petition with a focus on clear, impactful presentation offers a strong path forward. For certain cases and situations, federal litigation can also be a powerful tool.

---
Locke Immigration Law helps American companies and immigrant professinals work together.

Send us your information to see if we can help you.

Follow Loren Locke on LinkedIn

Watch Loren Locke on YouTube

---

Want to learn how to strategically frame your achievements for the EB1A "Extraordinary Ability" visa?

My free 5-day email course, "5 Days to Your Compelling EB1A Story," provides the 'EB1A Storytelling Toolkit' to help you build a powerful case.

Sign up here: https://lockeimmigration.com/eb1a-email-course