What can I do if my US EB-1A green card is denied?

Let's say your EB-1 petition (I-140) is denied because USCIS does not accept that you are "one of that small percentage who have risen to the very top of the field of endeavor".

So what now?

1Common reasons for a denial

USCIS might write, for example:

“Viewed in its totality, the record suggests that the petitioner has played an important role in research. However, the evidence submitted does not sufficiently establish that the petitioner is one of the small percentage who have risen to the very top of the field.”

The claim that the petitioner is "one of that small percentage who have risen to the very top of the field" is not sufficiently supported by evidence. USCIS then writes, for example:

“The petitioner's contributions, publications and presentations of research are characteristic of a researcher's position, but these achievements are not enough to demonstrate nationally or internationally recognized excellence.”

So what is the best way forward?

• Appeal the denial, or
• File a new EB-1 Extraordinary Ability I-140 petition?

2Appeal

If an EB-1 petition is denied by the immigration authorities, you can appeal. Appeals of this kind are reviewed by:

1. USCIS, through its Administrative Appeals Office (AAO)
2. The Executive Office for Immigration Review, United States Department of Justice, through its Board of Immigration Appeals (BIA)

Denied I-140 petitions (and therefore the EB-1A) go to the Administrative Appeals Office (AAO).

Only the petitioner can file the appeal. When the AAO receives it, it checks whether the reasons for the denial have been addressed and the requirements are met.
First, the office that issued the denial reviews the case again; if it does not grant the appeal itself, the AAO decides.

If the petitioner is represented by another person or a legal representative, a properly completed USCIS Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative), signed by both the representative and the petitioner, must be filed.

2.1The appeal process

Once USCIS has denied a petition, an appeal only makes sense if the petitioner is convinced the case can be justified. After carefully reviewing the appeal, the AAO decides how to proceed.

The appeal must be filed with the USCIS Service Center that handled the original petition, and the procedures and deadlines set by the agency must be followed to the letter. The petitioner is free to attach a detailed explanation to the appeal.
The agency can then

1. sustain the appeal and change the original decision; 
2. dismiss the appeal and uphold the original decision; or
3. send the case back to the original office for further processing.

If the Form I-140 petition is denied, the petitioner should study the USCIS decision carefully and then appeal. You receive a decision notice from USCIS setting out the reasons for the denial, the appellate body in charge (for example the Administrative Appeals Office, AAO) and the procedure for filing an appeal. The appeal should be filed within 30 days of the denial.

3Motion to reopen

Besides an appeal, the petitioner can also ask the responsible USCIS Service Center to reconsider the case. New details, documents and evidence can be submitted to strengthen the petition.

If the stated reason for the denial is that key documents were missing, the petitioner can request in writing that the case be reconsidered. To do so, you submit the required documents and pay the applicable fees to the USCIS Service Center. This is known as a "motion to reopen". Having a case reconsidered is often faster than an appeal, which is a lengthy process.

A motion to reopen with USCIS follows from an insufficient petition, and it must be filed within 30 days of the denial.

The motion must be filed on Form I-290B (Notice of Appeal or Motion). This is a formal request to the USCIS Service Center that issued the denial, and it must be accompanied by a statement and supporting evidence.

4Filing again in a similar category

An appeal implies that USCIS was wrong to deny the petition and made a mistake in assessing the case. That is why it is usually wiser to skip the appeal and file a well-prepared new petition instead.

Only appeal if you can present watertight grounds for your claim. The AAO usually takes quite a while to get to an appeal, sometimes a year or longer. And not every appeal overturns the original decision. So it is often better to file again or look at alternative categories such as Outstanding Researcher (OR) or Outstanding Professor. Categories like the National Interest Waiver (NIW) or Labor Certification are also worth considering for a new petition.

If you file again in a similar category, you must disclose details of any earlier denials along with the new I-140 petition.

The new petition needs strong evidence to support the case, such as new patents, academic papers, journal articles, additional citations, support letters and other documentation. This is required for EB1-EA, EB1-OR and NIW petitions. Even though recent denials carry less weight for new petitions, we recommend the following approach:

• A new I-140 petition with supporting evidence and additional documents to back up the case.
• Applying under alternative EB1 categories such as Outstanding Researcher (OR) or Outstanding Professor, or categories such as the National Interest Waiver (NIW) if the petitioner has made notable achievements in their field that are in the national interest of the USA.
• Applying in the restrictive Labor Certification category, taking into account the petitioner's specific expertise and the current business environment.
• Applying for US permanent residence through other routes, such as family sponsorship, a spouse's employment, asylum or the Diversity Visa Lottery.

To avoid a denial in the first place, read our notes on common mistakes in EB-1A petitions and on how to make your EB-1A petition a success. For the full picture, see our EB-1A green card hub.

In short

• Typical reason for denial: USCIS is not convinced you belong to the small percentage at the very top of your field.
• Denied I-140 petitions go to the Administrative Appeals Office; the appeal should be filed within 30 days.
• A motion to reopen on Form I-290B is often faster, and also has to be filed within 30 days.
• A well-prepared new petition is often the better route, including in categories such as EB-1B or the National Interest Waiver; you must disclose earlier denials.

How we help you

• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.
• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Moving to the USAVisa, bank account, taxes and where to live: your move with Mount Bonnell Advisors.