EB-1A (Alien of Extraordinary Ability) Denied. What Should You Do?

 

Was your EB-1A (Alien of Extraordinary Ability) case denied? Don’t despair. Here are your options:

Among all the employment-based immigration categories, EB-1A (Alien of Extraordinary Ability) has the highest standard of law and lowest approval rate. It was designed for people who have risen to the top of their endeavor with national or international acclaim. It allows self-petition (no employer sponsor) and gives people the freedom to change employers.  It is especially attractive to people born in India or China because the priority date is current for everyone, meaning people with an I-140 petition under the EB-1A category are eligible to get a green card (after Adjustment of Status or Consular Processing) without waiting for several years, unlike I-140 under EB-2 or EB-3 categories.

Each year, countless EB1A (Alien of Extraordinary Ability) cases are denied even though the petitioner/beneficiary had good credentials and put an abundance of effort preparing for the case. If your EB-1A (Alien of Extraordinary Ability) case is denied, don’t despair. While many may feel that a denial signifies the end of the road, there are still many possibilities that can lead to a successful case approval. Although case denials and RFEs (Request for Evidence) are not optimal, a large percentage of our business at North America Law Group/Chen Immigration Law Associates is spent assisting clients who have unsuccessfully filed petitions with other law firms, attorneys, or by themselves. Using our experience and knowledge, we have successfully counseled these clients about the available options, and have consistently been able to gain case approval for clients with previous denials. At North America Law Group/Chen Immigration Law Associates, we are committed to success and will do whatever it takes gain your EB-1A case approval.

This article will cover the three basic options after an EB-1A (Alien of Extraordinary  Ability) is denied, and explain what services we can offer you in the event of a case denial.

Appeal:

An appeal is a request to a higher authority to review a decision. If your case is denied, you can file an appeal to the USCIS Administrative Appeals Office (AAO). When an applicant or petitioner appeals a decision to the AAO, the officer who made the original decision first reviews the record to determine if the evidence or argument submitted in the appeal warrants reopening or reconsidering the decision. If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, the officer will forward the case for further review to the AAO, where the appeal will ultimately be either sustained or dismissed.

Filing and processing time: An appeal should be filed within 30 days from the date of the decision. Regarding processing times, the USCIS states: “Although some cases may take longer, the AAO attempts to resolve appeals within six months of receipt.”  The general consensus is that appeals take at minimum 6 months and at times, much longer than that.

Motion to Reopen or Motion to Reconsider:

A motion to reopen or a motion to reconsider is filed with the same USCIS service center that issued the unfavorable decision, and is generally reviewed by the same officer who denied the case. Both types of motions argue that the denial was incorrect, and request that the USCIS officer reconsider its earlier decision, and issue a favorable decision.

There are important differences between a motion to reopen and motion to reconsider, and the distinction between the two should be kept in mind when considering either option.

1. Motion to Reopen:

A motion to reopen should be based upon new facts that were not available at the time of the original filing. The motion to reopen should be supported by affidavits or other new factual evidence. It is not enough to submit evidence that could have been submitted initially, the motion must demonstrate that there has been a change in circumstances that would persuade the officer to reverse the previous decision. If a motion to reopen meets the requirements, the case will be returned to pending status and the USCIS will then review all of the evidence and either approve or deny the case.

The key to a motion to reopen is to provide new evidence that was not previously available at the time of filing. The processing time is usually within 30-60 days.

2. Motion to Reconsider:

A motion to reconsider a denial should be based on legal arguments showing why the decision is wrong. A motion to reconsider is based on arguments that the USCIS misinterpreted or incorrectly applied the law, misinterpreted or disregarded facts that were presented at the time of filing, or can combine both arguments if necessary. Additionally, supporting evidence (usually the law or previous decisions) must be presented to demonstrate why the decision was incorrect. If a motion to reconsider is accepted, the case will usually be reopened and approved.

Re-filing:

Many clients come to us at North America Law Group/ Chen Immigration Law Associates after their case filed by another law firm, attorney, or by themselves was denied. Generally, we are able to re-file these cases successfully with the result of case approval. Often times, we have found that cases were not organized properly, did not focus on the most relevant information, or omitted information that was critical to case approval. With our experience and high approval rate for EB-1A cases (over 98% for all cases originally filed by us), we can almost always re-file your case with successful results. There are a few options to consider when re-filing your case, and we will counsel you on the most appropriate and promising option for you. These include:

1. Refile a new case under the same category (EB-1A Alien of Extraordinary Ability):

This option often makes the most sense when the previous denial was the result of a case filed by another firm or filed by the client. In many cases, we find that the client has perfectly good credentials to qualify for the EB-1A category, but the petition was not organized properly or did not focus on the most relevant information. Using our proven strategies for EB-1A success, we are able to successfully re-file these cases under the same category. Depending on the quality of the existing evidence and recommendation letters, we draft new or additional recommendation letters and testimonial letters to support the new petition. Most of the time, we draft a new petition letter, highlighting pertinent information and avoiding weak points of the cases. We will closely advise you on the ideal plan of action for your unique circumstances in order to prepare a successful EB-1A petition.

Examples of successfully re-filed EB-1A (Alien of Extraordinary Ability) cases:

EB1A Approval for Medical Director and Chief of Opthamology in the field of Pediatric Opthamology after previous denial

EB-1A Approval for Assistant Research Scientist in the field of Agricultural Science with a Previous Denial in only 26 days

Approved case after multiple denials:

Successful EB-1A approval is possible even after multiple denials. In one case, a toxicologist working as a Research Scientist for a large pharmaceutical company came to us after receiving an RFE (Request for Evidence) for his EB-1A case that had been prepared by another firm. In our opinion, the client had good credentials to qualify him under EB-1A, but the previous petition did not employ a good strategy. The RFE challenged two criteria: original contributions of major significance as well as critical role in a distinguished organization. In our experience, critical role is an extremely difficult criterion to meet, and very few people meet the requirements for this criterion. In regards to the original contributions criterion, the immigration officer cited examples from the reference letters referring to the client’s potential for future success, arguing that the letters did not demonstrate that the client had already contributed significantly to his field. We responded to the RFE, but we were unable to overcome the errors of the initial petition and the case was denied.

By the time we received the final decision, it had been several months since the client’s initial filing, and his credentials had improved. We felt that his improved credentials (11 peer-reviewed articles and 110 citations) were enough to qualify him under EB-1A and we decided to re-file the case including both the old reference letters in addition to newly drafted recommendation letters (13 letters total were submitted) and a new petition.  Against our advisement, the client chose to undergo premium processing. In our experience, premium processing greatly increases the likelihood of RFE or case denial, so we generally do not recommend this option unless a case is very safe. Although this client had a good case for EB-1A, we  felt it was not a 100% safe case and that choosing premium processing was not worth the risk in this case. We received an RFE one week after re-filing the case with premium processing.

After responding to the RFE, the USCIS issued another denial. The denial was issued 4 months after we re-filed the case, so the client’s credentials had improved even more by this point. So we felt confident that if we re-filed the case again, without premium processing, the case would be approved.  Additionally, we included only 8 recommendation letters that we were sure established that the client had already contributed significantly to his field. This time, the case was approved in less than 20 days without RFE.  The client told us, “I had almost given up the possibility, and had it not been you folks my case has never been approved. I will recommend your firm to all my friends.”

There are several important points to take away from this case:

1. Case approval is possible even after multiple denials. Each case is adjudicated independently so past denials will not influence your re-filed case.
2. Waiting a few months to wait for your credentials to improve if your credentials were not strong at the time of original filing.
3. Premium processing increases the likelihood of receiving an RFE or denial, and is not encouraged for cases that are not 100% safe.
4. Quality is more important than quantity when it comes to recommendation letters.

Case preparation is a critical aspect of EB-1A (Alien of Extraordinary Ability) success. Even someone with great credentials can have their case denied if the petition does not successfully address all of their credentials in respect to the specific requirements of EB-1A. Due to the complexity of the requirements for EB-1A, it is in your best interest to leave case preparation to an experienced legal professional. At North America Law Group/ Chen Immigration Law Associates. We are experts in EB-1A Alien of Extraordinary Ability petitions and have the necessary experience to develop a winning strategy for successfully re-filing your EB-1A case.

2. Re-file under a different category:

Another option to consider after receiving an EB-1A denial is to file under a different category.

Many times, we found clients born in a country other than India or China got their cases denied under EB-1A when they should have petitioned under EB-2 National Interest Waiver. These clients either got incorrect suggestions from inexperienced immigration attorneys or filed the cases themselves.  NIW (National Interest Waiver) has a more flexible standard of law and is more suitable for ROW (Rest of the World), foreign nationals born in a country other than India or China. We have successfully re-filed many such cases under EB2-NIW (National Interest Waiver), allowing them to easily obtain their green cards.

If the client was born in India or China, filing under the category EB-1B (Outstanding Researcher or Professor) is a good option. Re-filing under EB-1B is a good option after an EB-1A denial, because the standard of law is much lower for EB-1B and the requirements are easier to meet.  While the criteria are very similar to the EB-1A criteria, you only need to meet two of the listed criteria instead of three for EB-1A.

Requirements to qualify for EB-1B:

1. You must have permanent research position
2. Your employer must act as the petitioner of your case, and you will be the beneficiary
3. You must have a minimum of 3 years of experience in the field (research conducted during your Ph.D. can count towards the 3 years)
4. Fulfill two of the following criteria in order to qualify as “outstanding”:
5. Evidence of the receipt of major prizes or awards for outstanding achievement
6. Evidence of membership in associations that require their members to demonstrate outstanding achievement
7. Evidence of published material in professional publications written by others about the alien’s work in the academic field
8. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
9. Evidence of original scientific or scholarly research contributions in the field
10. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

3. Wait until credentials have improved to refile under EB-1A:

If your visa permits, it is may be in your favor to wait for your credentials to improve before filing for EB-1A. Waiting a few months to accumulate more publications and citations can have a great impact on the success of your case. Additionally, you can try to conduct more paper reviews or join an editorial board to strengthen your evidence for the “judge of the work of others “ criterion. As part of our services, we will advise you as to whether or not we think that waiting for your credentials to improve is the best plan of action. We are a firm that is committed to 100% case approval, so we will never advise you to file your case unless we feel that you have a good chance of approval.

In conclusion, there are many options after receiving an EB-1A (Alien of Extraordinary Ability) denial. In our experience, re-filing cases has generally been the most successful option, but we are happy to counsel you on all of the available options. With our expertise, we have been very successful in getting EB-1A cases approved after denial, and even after multiple denials. If you have received an EB-1A denial, or are thinking of filing under EB-1A, please contact our evaluation service at law@wegreened.com to learn more about our services and our suggestions for your unique circumstances.

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