Pros and Cons of Appealing an EB1A Denial.

It is understandable that when an extraordinary ability individual spends a significant amount of their time and money to file an EB1A Alien of Extraordinary Ability petition, they want to immediately appeal the denial. Often, we hear the phrase “please, just appeal their decision. The USCIS must have made a mistake.” While the EB1A denial notice will usually state the reason for the denial, we have to look at the totality of circumstances to determine what is in the best interests of our client: whether it is to appeal the decision or to refile the EB1A case anew.

Your EB1A Alien of Extraordinary Ability Petition Was Denied. Now What?

At this point we look through our client’s case closely to determine whether the EB1A denial was justified or not. If a different law firm worked on our client’s original EB1A petition, then we need to determine whether the EB1A petition could have been prepared in a more favorable light to our client. Second, we must determine whether our client is limited by a timeline. For example, if the individual is in the United States and his or her status will expire within a few short months, then waiting for the appeal results would possibly not work under the circumstances. Finally, we have to consider whether our client has any new evidence, such as additional research and publications, invitations to participate in incubator programs, or requests to peer review scholarly work, etc., that would make their case stronger.

General Background Information

When the USCIS denies an I-140 Petition for Alien Worker, you have the option of appealing their decision. First, you should review the decision that the USCIS issued. The notice will inform you of the reason(s) why the USCIS denied your I-140 petition, as well as inform you of the appropriate appellate jurisdiction and deadlines.

If the USCIS denied your I-140 petition in the EB1A Extraordinary Ability case, you have the right to appeal their decision by filing an appeal with either the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). Your denial notice will inform you whether the appeal should be filed with the AAO or the BIA. More often than not, the AAO will have the appropriate jurisdiction over the appeal of the I-140 denial.

General Procedures for Filing an Appeal with the AAO

First, only the person who filed the original I-140 petition has the right to file an appeal. That means only the petitioner or the applicant can file the appeal and not the beneficiary. This distinction is important in employment situations where your employer (the petitioner) had filed the petition on your behalf.

Most appeals have to be filed on Form I-290B within 30 days of the unfavorable decision (or 33 days if the decision was mailed).

The AAO looks at your case from the beginning and considers all issues of fact, law, policy, and discretion. This means that the AAO may address new issues that were not previously addressed by the USCIS.

Timelines Associated with the EB1A Denial Appeal

The administrative appeals process has two stages. First stage is the initial field review. The second stage is the AAO appellate review.

First, the USCIS field office that denied the I-140 petition originally will review the appeal and determine whether to approve the petition. Generally, the field review takes up to 45 days. If the field office does not approve the petition, then they forward the appeal to the AAO.

The AAO strives to complete its appellate review within 180 days from the time it receives the case after the initial field review. Some cases may take longer than 180 days. For example, additional documentation may be needed, or the case may be more complex and require additional time.

How many EB1A Petitions Get Denied or Approved on Appeal

While specific data are not currently available regarding how many EB1A petitions the field office denies or approves, the USCIS claims that a significant number of appeals are favorably resolved during the initial field review. On the other hand, according to the USCIS statistics, the AAO denied 68 EB1A appeals in 2016 and 76 in 2017, while it approved only 17 cases in 2016 and 15 in 2017.

Benefits of Refiling an EB1A Petition Anew

As discussed above, our clients’ personal circumstances will dictate whether refiling an EB1A petition anew would be more beneficial compare to filing an appeal. If, after analyzing their entire EB1A case and personal circumstances, it becomes apparent that an appeal would not be in their best interests, then we will prepare a brand new EB1A petition. The new petition, if possible, will address any issues raised by the denial and include any new supporting evidence, making it as strong as it possibly can be.

Finally, one of the biggest benefits of filing a new I-140 petition is the 15-day timeline associated with the premium processing, Form I-907, that is currently available for the EB1A cases. This shorter timeline will not only allow our clients to apply for permanent residence faster if the I-140 petition is approved, but also come up with an alternative plan much sooner if the petition was not successful.

Should You Appeal the EB1A Denial? It Depends…

In most situations, if the USCIS denied your EB1A petition and you believe you have a strong case, then you may choose to appeal. You should take into account the time associated with the appellate process. Also, you should consider in advance that if the appeal is not successful, whether you want to file your EB1A petition once more or to discuss alternative options with your immigration lawyer.

If you are concerned that the appeal process may take approximately eight months and a positive outcome is not guaranteed, then refiling a new EB1A petition might be a better strategy. It is important to consider consulting with a knowledgeable EB1A immigration attorney to decide what your best options might be.