EB1A Mindset: What to Do After a Denial

The EB1A process isn’t guaranteed to work. If you’ve experienced an unfavorable decision, you’re definitely not alone—many clients face this situation. Many petitions don’t receive approval on the first try, for a variety of reasons.

Many clients work with professionals to overcome an unfavorable decision and ultimately achieve success.

However, an unfavorable decision 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 an unfavorable decision.

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. A denial means your petition was reviewed and determined by an immigration officer, who concluded that the evidence did not meet the required standards.

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.

After reviewing your case, the immigration officer determines if your petition meets each criterion required by immigration law for the EB-1A category.

Understanding the Denial Notice

When your EB-1A petition is denied, the first and most important step is to thoroughly review the denial notice you receive from USCIS. This document details the specific reasons your petition was denied, such as not meeting certain eligibility criteria, submitting insufficient evidence, or making errors in your filing. Understanding exactly why your petition was denied is crucial for determining your next move—whether that’s re-filing, appealing, or pursuing another option.

An experienced immigration attorney can be invaluable at this stage. They can help you interpret the denial notice, identify any weaknesses or missing information in your original petition, and provide clear guidance on how to address these issues. The denial notice may also outline your options for appealing the decision or re-filing your EB1A petition. By carefully reviewing the notice and consulting with an attorney, you can develop a targeted strategy to overcome the denial and strengthen your case for future filings.

Evaluating Your EB1A Denial Objectively

Understanding why your petition failed is crucial for determining your next steps. Carefully review your denial letter, which reflects the earlier decision made by the adjudicating officer, 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?

Reviewing the earlier decision and understanding the reasons for the previous denial is essential for planning your next steps.

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 USCIS Administrative Appeals Office (AAO) by filing Form I-290B, Notice of Appeal or Motion, within 30 days of the decision. If your case is appealed, it will be reviewed by the AAO through an appellate review process, which has its own forms, fee payment requirements, and processing time. Immigration appeals require timely submission and supporting documentation. All forms must be accurately completed, and paying the correct fee is essential to avoid rejection.
2. File a Motion to Reopen or a Motion to Reconsider. A motion to reopen must be based on new facts or evidence that was not available at the time of the original decision, while a motion to reconsider is based on the claim that the original decision was incorrect based on the evidence and law at the time. Both motions are filed using the appropriate forms and require fee payment. Reconsidering or reopening a case gives you the opportunity to submit evidence or present evidence that supports your eligibility. Failure to respond to a request for evidence or to submit the requested evidence can result in denial.
3. Suing in federal court. The petitioner may seek judicial review in federal court, which is available without going to the AAO, particularly if the denial is challenged under the Administrative Procedure Act (APA).
4. Re file the Petition. You can re file your petition with improved or additional evidence, addressing any weaknesses from the previous filing. Approvals are possible after previous denials if your new petition is supported by strong documentation and you carefully follow each step. USCIS decisions are based on whether the evidence you submit supports your claim of extraordinary ability in your academic field.

While denial notices invite you to appeal and give 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 EB-1A petition. If you are not eligible for EB-1A, you may be eligible for other categories, such as those requiring an advanced degree, a job offer, or an employer sponsor (like EB-2 or EB-3). Alternatively, EB-1A allows self petition without a job offer or employer. Consular processing is also an alternative to adjustment of status. Approvals are supported by strong, well-organized evidence, and each step must be carefully followed to improve your chances of approval.

Appealing the Denial

If you believe your EB-1A petition was wrongly denied, you have the right to appeal the decision to the Administrative Appeals Office (AAO). To initiate this process, you must file Form I-290B, Notice of Appeal or Motion, within 30 days of receiving the denial, and pay the required filing fee. The AAO will then conduct a comprehensive review of your case to determine whether the original denial was justified.

Having an immigration attorney by your side during the appeal process is highly recommended. Your attorney can provide essential legal guidance, help you prepare a compelling appeal, and ensure all necessary documentation and additional evidence are included to support your case. They can also help you craft strong legal arguments that address the reasons for denial and demonstrate your eligibility for the EB1A category. With the right support, you can maximize your chances of a successful appeal and move closer to your green card goals.

Understanding the Administrative Appeals Office (AAO) Process

The Administrative Appeals Office (AAO) is an independent body within USCIS that reviews appeals of denied immigration petitions, including EB-1A cases. When you file an appeal, an AAO officer will conduct a thorough review of your petition, examining all evidence and documentation you have submitted. The officer will evaluate your case against the EB1A eligibility criteria and determine whether the original denial was correct.

The AAO process can take several months, so patience and persistence are key. During this time, it’s important to ensure that your appeal is well-documented and clearly addresses the reasons for the initial denial. An immigration attorney can help you navigate the AAO process, making sure your case is presented in the strongest possible light and that all required documentation is included. By understanding how the AAO reviews cases and what they look for, you can better position your appeal for a favorable outcome.

Gathering Additional Evidence

After an EB-1A denial, strengthening your case with additional evidence is often essential—whether you are re-filing your petition or pursuing an appeal. This may involve obtaining new reference letters from recognized experts in your field, gathering more robust documentation of your international acclaim, or providing clearer proof of your leading or critical role in significant projects or organizations.

An immigration attorney can help you determine exactly what type of evidence will best support your case and ensure it meets the specific requirements of the EB-1A category. They can advise you on how to present your achievements and contributions in a way that aligns with USCIS expectations. By carefully assembling and organizing your documentation, you can address any gaps or weaknesses from your previous filing and significantly improve your chances of approval.

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 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 published another article, won a promotion or an award, or otherwise built up a more robust record of contributions in your field. It is important to present evidence that directly addresses the reasons for your previous denial and to submit evidence that clearly demonstrates your eligibility.
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, and all documents should be supported by clear, well-organized evidence that convincingly supports your qualifications and claims.
4. Consider Changing AttorneysIf 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. Working with a law firm experienced in EB-1A cases can improve your chances of success, as such firms have a proven track record and can provide personalized guidance.
5. Don’t Give Up:Maintaining persistence, positivity, and a proactive attitude can make the difference in achieving approval.

Green Card Options: Exploring Alternatives

If your EB-1A petition is denied, it’s important to remember that other green card options may still be available to you. Alternative employment-based categories, such as EB-2 or EB-3, or even family-based green cards, could be a better fit depending on your background and qualifications. Each category has its own eligibility criteria and documentation requirements, so it’s essential to carefully evaluate which option aligns best with your experience and goals.

An immigration attorney can help you assess your eligibility for alternative green card categories, guide you through the process of preparing and filing a new petition, and ensure that all necessary evidence and documentation are submitted. They can also provide insight into processing times and advise you on whether re-filing or appealing a denied petition is the best course of action. With the right legal guidance, you can explore all available pathways to permanent residency and keep your immigration journey moving forward.

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.

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Locke Immigration Law helps American businesses hire skilled foreign nationals to work in the United States.

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