EB1A Mindset: What to Do After a Denial

The EB1A process isn't guaranteed to work. If you've experienced a denial, you're definitely not alone. Many petitions don't receive approval on the first try, for a variety of reasons.

However, a denial doesn't have to be the end of the road for you. Often, it's just the beginning of a stronger, smarter application. Let’s discuss practical strategies for overcoming the major setback of denial.

Why a Denial Happens (and Why It’s Not the End)

There’s no sugar-coating it—receiving a denial can feel devastating. But the reasons behind that decision vary greatly.

Common reasons EB1A petitions are denied include:

• Filing prematurely, before acquiring ample achievements.
• Self-filing without an attorney.
• Hiring an attorney who lacks experience with successful EB1A submissions.
• Weaknesses in how the petition is organized and presented (visually unclear, incomplete documents, blurry evidence, etc.).
• Getting a USCIS adjudicator who just isn't buying what you're selling.

Evaluating Your EB1A Denial Objectively

Understanding why your petition failed is crucial for determining your next steps. Carefully review your denial letter for clues. Ask yourself these important questions:

• How many of the "extraordinary" criteria did the adjudicator agree with? Which ones did you put forth that the adjudicator didn't agree with?
• Did the adjudicator understand your field of expertise?
• Do your supporting letters lack detail or clarity?
• Were your supporting exhibits incomplete or visually lacking?
• Is your petition too challenging to read and comprehend?

If you're uncertain about the reasons, partner with an experienced immigration attorney to gain clarity. Requests for Additional Evidence, Notices of Intent to Deny, and denial letters are often packed with boilerplate language that doesn't necessarily pertain to your filing. They also often have carryover errors from other cases or reflect misunderstandings the adjudicator has about your case. The right attorney can shed critical light on the USCIS decision and help you devise the approach for your next submission.

What can you do after petition denial?

These are your options:

1. Appeal the denial to the Administrative Appeals Office (AAO) by filing Form I-290B, Notice of Appeal or Motion, within 30 days of the decision.
2. File a Motion to Reopen or Reconsider. This involves submitting new evidence that was not available at the time of the original decision. A motion to reconsider is based on a claim that the original decision was incorrect based on the evidence and law at the time.
3. Suing in federal court. The petitioner may seek judicial review in federal court. This option is available without going to the AAO, particularly if the denial is challenged under the Administrative Procedure Act (APA).
4. Refile the Petition.

While denial notices invite you to appeal and gives you a deadline to do so, the reality is that successful appeals are statistically rare. In reality, appealing gives the government a chance to clean up and strengthen the grounds for denial. Meanwhile, you could have jumped straight to suing USCIS in federal court, where your odds of successfully reversing the denial would have been higher.

For many people, a smarter use of effort and resources involves regrouping, strengthening their profile, and submitting a fresh, thoroughly documented EB1A petition.

Refiling Your EB1A Petition: Practical Steps to Success

Here is what I recommend for your next try:

1. First Understand Your Denial Reasons:
   Pinpoint exactly where your original application fell short. By fully understanding the reasons for your denial, you can you improve your next filing.
2. Enhance Your Profile:
   Strengthen your evidence and credentials before refiling. This might include collecting new testimonials and evidence about what you have already accomplished, or delaying until you've publishing another article, won a promotion or an award, or otherwise built up a more robust record of contributions in your field.
3. Optimize Your Documents:
   Even small, technical details can affect how adjudicators see your case. Make sure that every piece of evidence you submit is clear and legible, and has an important purpose. Your package should be easy to read and logically organized.
4. Consider Changing Attorneys
   If your original attorney didn't deliver the work product or attention you expected, or can't explain why you got denied or propose what you should do next, don’t hesitate to seek a new immigration attorney. The right attorney-client collaboration dramatically improves your chances of success.
5. Don't Give Up:
   Maintaining persistence, positivity, and a proactive attitude can make the difference in achieving approval.

Take Control of Your EB1A Future

Facing a denial doesn't define your journey, but it gives you important feedback that helps clarify your path to ultimately succeeding with the EB1A process. You absolutely can achieve your immigration goals if you approach your reapplication strategically and positively.