US O-1 Visa: When Your Extension Is Denied

Getting an O-1 visa can be a tough process, and the qualifications required make petition decisions highly selective. That is why the standard period of three (3) years may not be enough to finish your contract. If so, you may want to apply for an O-1 extension, which is granted in increments of up to one (1) year. If your O-1 extension is denied, you have several options to weigh.

1Why was my extension denied?

Whether you have just received an O-1 extension denial or want to avoid one, here are a few things you should know before you take any further steps.

The first question to ask is whether you received a rejection or a denial. They may sound like synonyms, but to USCIS they are two completely different categories. The agency reviews petitions in two stages. In the first stage, an adjudicating officer gives your petition a quick review to make sure you have provided all the required information and paid all fees correctly. A rejection means your petition did not get past this first check. To fix it, identify the error and refile your petition with the help of an immigration attorney.

If your petition passes the first stage, it gets a closer second review. This is where USCIS decides whether you still have the qualifications to continue on your O-1 visa. If your petition fails at this stage, it will most likely be denied, and overcoming that takes more serious steps.

Here are some common reasons for rejected and denied O-1 visa extensions:

1. You no longer work in the role that originally qualified you for the O-1 visa.
2. USCIS has determined that the project you worked on no longer needs you in order to be completed successfully.
3. You violated your O-1 status in some way.
4. There is an error or omission in your petition.
5. Your fees were insufficient or submitted incorrectly.

Keep in mind that these are just some of the common reasons your extension may have been denied or rejected.

2First steps

Applying for an O-1 visa and later for an extension can be difficult and time-consuming, so working with an immigration attorney to guide you through the whole process is strongly recommended. If your O-1 extension has been denied, contact your attorney right away and review your options to avoid removal and finish your contract.

Finishing your contract is not guaranteed, though, and you may have to return to your home country and apply for a new O-1 visa. The good news: you can file a new petition as soon as you are back, because unlike some other nonimmigrant visas, the O-1 does not require you to maintain a residence abroad.

3What happens when an O-1 extension is denied

If your O-1 extension petition has been denied, don't panic. As long as the departure date on your I-94 has not passed, you can stay until that date. If you have overstayed and your I-94 expired by the time you received the denial, you will usually be given thirty (30) days to comply with the denial and return to your home country.

If this 30-day period passes and you are still in the United States, you face removal. Note, however, that during this period you are considered out of status and your stay is not officially authorized.

USCIS can also refuse this grace period and require you to leave the United States immediately. The clearest advice here is to respect your I-94 departure date, because removal can lead to a permanent or semi-permanent bar on entering the United States in the future.

Also think about everyone who came with you on O-2, O-3 or other visas tied to your O-1 visa. If you need an O-1 extension, they will also need an extension matching the type of visa they hold.

If their visas are also denied, they must leave the United States with you or risk similar consequences. Unfortunately, O-1 extension fees are non-refundable.

4Required follow-up after an O-1 extension denial

Once you have returned home after your O-1 extension was denied, you need to communicate further with USCIS so you can apply for another O-1 visa in the future. The following must be sent to USCIS after your return, and you should also carry it with you when you come back to the United States:

• The original O-1 extension denial letter sent to you by USCIS.
• A photocopy of your passport's biographical page.
• A copy of an entry stamp from a country other than the United States as proof of departure.
• Your original boarding pass for your departure flight.
• A written statement attributing your overstay to waiting for a decision on your O-1 extension.

5What to avoid

When you receive an O-1 extension denial, you may be tempted to confront USCIS aggressively. Don't. Any attempt to bribe or pressure the consular officer can get you permanently barred from the United States.

Also avoid contacting politicians or other officials to sway the consulate. USCIS has to follow the regulations that govern your visa and will almost certainly not change a decision once it has been made. At the very least, attempted pressure only leads to paperwork and delays in processing future visa applications, possibly under different circumstances.

Another option that may seem plausible is leaving the country and trying to re-enter on a tourist visa via Canada or Mexico to finish your contract with your employer. Attorneys and experts alike advise against this: working in the United States on a tourist visa is prohibited, and USCIS treats it as a violation of your visa. It can also lead to a temporary or even permanent bar on future visa petitions.

6What you should do

If your O-1 extension is denied, there are a few options that may or may not be open to you. Remember: your first step should be to see an immigration attorney who can review your case and advise you on which options fit your situation best.

6.1Motion to Reopen

The first of two legal motions, a Motion to Reopen, works best when there is new evidence that could change the outcome of your case if it were reopened. In essence, it asks for the decision to be made again in light of new evidence.

6.2Motion to Reconsider

Here, you and your attorney believe the officer's decision was wrong. A Motion to Reconsider asks that officer to review the case again, provided you have made a compelling argument for approving your O-1 extension.

7What are the alternatives?

If your extension is denied, it may be worth trying a different visa category. As an O-1 holder, you may qualify for another nonimmigrant visa. Here are some common visas that could be options for you:

7.1H-1B

This popular visa is ideal for people with a bachelor's degree and a job offer in a specialty occupation related to their education. Despite the low barrier to entry, there are drawbacks to consider. The H-1B is valid for a maximum of six years, a clear step down from the O-1 visa, which can be extended indefinitely (as long as, of course, your O-1 extension is not denied).

The H-1B is also so popular that demand almost always exceeds supply. That is why USCIS holds an annual lottery to randomly select the petitions it will process. Depending on how many people file, your chances of being selected may be fairly slim.

7.2E visa

If you are a national of a country that has a trade treaty with the US, you may be able to apply for the E-1 treaty trader visa or the E-2 US investor visa. For the E-1, you need to build substantial trade with the US. For the E-2, you need to invest a substantial amount in a US business.

One of the biggest advantages of an E visa is that you can renew it indefinitely, as long as you keep meeting the requirements. That said, getting your green card from an E visa can be harder than from an O-1 or H-1B visa.

8Going for a green card

If your O-1 extension has been denied, another option may be to apply for your green card so you can stay in the US. That way, you can live in the country permanently without having to keep applying for extensions.

To move from an O-1 visa to a green card, either your employer files an I-140 petition on your behalf or you file one yourself (depending on the green card). Your employer may also need to obtain PERM labor certification for you. Once your petition's priority date is current in the latest Visa Bulletin, you can file the I-485 to adjust your status.

These are the three green cards O-1 visa holders most commonly go for:

8.1EB-1A

The requirements for the EB-1A are very similar to those for the O-1. To qualify, you need to show extraordinary achievement (for example, international awards, a high salary, exclusive memberships). Keep in mind, though, that qualifying for the O-1 does not automatically mean you qualify for the EB-1A. If your O-1 extension was denied because of problems maintaining status, you may run into similar issues with this green card.

The advantage of this green card is that you need neither PERM nor a sponsoring employer to file a petition. It also tends to have the shortest priority date waits.

8.2EB-1B

This green card is for outstanding researchers and professors. Its requirements can also match those of the O-1, which could make it the ideal green card for you. While the EB-1B requires a sponsoring employer, you do not need PERM.

8.3EB-2

If you hold an advanced degree or have exceptional ability in your field, you may be able to get an EB-2 green card. You normally need both a sponsoring employer and PERM, but if you qualify for the National Interest Waiver, those requirements can be waived and you can self-petition.

9How to improve your chances with future petitions

Many people believe that a denied O-1 extension puts you on a blacklist and dooms any further attempt at another O-1 visa. That is not true: there is no limit on the number of petitions you can file, provided you have respected the departure date on your I-94. What matters is understanding why your O-1 extension was denied and addressing those reasons to improve your chances next time.

However, if you stayed past your I-94 departure date and fell out of authorized status while in the US, you may run into problems with the consulate, because its records will show that you violated the terms of your visa.

Unfortunately, there is no appeal process if your O-1 extension is denied. To protect your future petitions, the best approach is to respect your I-94 departure date and prepare a new petition with your immigration attorney from outside the United States.

10How Mount Bonnell Advisors can help

An immigration attorney is invaluable in any US visa matter, but if your O-1 extension has been denied, you need an expert on your side now more than ever. Mount Bonnell Advisors works with leading US immigration attorneys. Get in touch now to find out which steps to take in your specific case after your O-1 extension was denied. For an overview of the visa category, see our O visa overview page, and to learn how to avoid a denial in the first place, read How to get your O-1 visa extension approved.

In short

• USCIS distinguishes a rejection, for example because of missing information or fees, from a denial after review on the merits.
• After a denial, you may stay until the date on your I-94; after that, you usually have around 30 days to leave.
• Possible next steps are a motion to reopen with new evidence and a motion to reconsider.
• Alternatives include another visa such as the H-1B, E-1 or E-2, and a green card through EB-1A, EB-1B or EB-2.

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