Dealing with EB-1 Visa Denials
When a person applies for an Employment-Based EB-1 Immigrant Visa and US Permanent Resident Green Card, they naturally hope that they will be approved.
The good news is that most I-140 petitions for the EB-1 Visa and Green Card do receive approval from US Citizenship and Immigration Services (USCIS).
Nevertheless, there are some petitions for the EB-1 that are denied or rejected by USCIS for one reason or another.
This article will answer a question that is commonly asked by many skilled foreign workers: What happens if my EB1 is denied?
Table of Contents
What is the difference between denial and rejection?
If your EB-1 is denied, this means that a US immigration official has reviewed your file and decided that you do not satisfy the eligibility requirements for the EB-1 Immigrant Visa and Green Card.
On the other hand, rejection of your EB-1 generally means that there was a problem with your petition (for example, mistakes were made or the filing fee was not paid) and, therefore, a US immigration official did not even review it.
Common reasons for EB-1 denial
Some of the major reasons for EB1 denial include:
- The applicant did not meet the EB1 eligibility requirements
- Information was missing
- Information was inaccurate
- Information was inconsistent
- Information was determined to be false or misleading
- The government fee was not paid
- The applicant was inadmissible for criminal or security reasons
- The applicant was inadmissible for health reasons
What if EB-1 is denied?
If the EB-1 was rejected (for example, because of a mistake on the petition or the payment was not received), the applicant can file a new EB-1 petition and address the cause(s) for rejection.
In the event that EB-1 is denied, the applicant could file an appeal, however, this would generally require new documentation to be provided that would support the appeal.
Another potential option, if EB-1 is denied because the applicant did not satisfy the eligibility requirements, could be to apply for one of the other three sub-categories of the EB-1 (if the criteria can be satisfied) or apply for a different Employment-Based Immigrant Visa and Green Card, such as the EB-2 or EB-3, or apply for a temporary US work visa (such as the H-1B Visa, O-1 Visa or L-1 Visa).
What if I receive an RFE?
You may receive a Request for Evidence (RFE) from US Citizenship and Immigration Services (USCIS) if:
- the US immigration official requires more documents in order to decide if you are eligible
- all of the required documents were not provided
- the documents that you provided are not valid
In the event that you receive an RFE, you should provide the requested evidence as soon as possible and before the deadline, which is generally within 90 days.
Should you appeal?
Whether you should appeal if EB-1 is denied will depend on the reason(s) for the denial.
The first thing to do is to carefully read the decision made by USCIS and understand why your EB-1 is denied.
If you believe that you can give good reasons and provide supporting documentation for why USCIS should not deny your EB-1 petition, you have the right to appeal to the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO).
The appeal generally involves filing the Form I-290B Notice of Appeal or Motion and paying the $675 filing fee.
An appeal generally needs to be filed in 30 days or less after the EB-1 is denied.
The initial USCIS review of the appeal generally takes about 45 days.
In the event that the I-140 petition is not approved by USCIS, an appellate review can usually be performed in 180 days or less.
Conclusion
The majority of Form I-140 petitions filed with USCIS for the EB-1 Immigrant Visa and Green Card are approved, however, the EB-1 is denied for a significant percentage of applicants for one reason or another.
It is important to complete all of the government forms correctly, provide all of the required supporting documentation and pay the various government fees when necessary to reduce the chances that your EB-1 is denied by USCIS.
One of the first steps of the process is to find out if you are likely to satisfy the eligibility criteria for the EB-1 Immigrant Visa and Green Card or another US immigration program.
USAFIS can provide you with a US Visa Assessment that will evaluate your eligibility for a permanent resident visa or temporary resident visa to the United States.
If you qualify, USAFIS can provide you with guidance in preparing your documents prior to submission and also offers other beneficial services to help your US relocation process go as smoothly as possible.
Frequently Asked Questions (FAQ’s)
What happens if USCIS denies your case?
If your petition for EB-1 is denied, you will receive an official notification from US Citizenship and Immigration Services (USCIS) detailing the reason(s) for the denial. You should carefully read the USCIS notification and understand why your EB-1 is denied. Then you can decide whether you can provide good reasons and supporting documentation to file an appeal within 30 days of the denial. An appeal is usually filed with the Administrative Appeals Office (AAO). The initial decision about the appeal is normally made within 45 days, while an appellate decision (if the initial appeal is denied) is generally made within 180 days. If all of your attempts to appeal the EB-1 denial fail, and if you are not inadmissible, you may be able to file a petition for a different Employment-Based (EB) Immigrant Visa and Green Card (such as the EB-2 or EB-3) or a temporary US work visa (such as the H-1B Visa, O-1 Visa or L-1 Visa).
What is the intent to deny EB-1?
If USCIS sends you a Notice of Intent to Deny (NOID), it generally means that there is not enough evidence (i.e., supporting documentation) for your I-140 petition to be approved, but USCIS is not yet prepared to deny the petition without receiving additional information from you. When you receive a Notice of Intent to Deny (NOID) or a Request for Evidence (RFE), this generally indicates that USCIS does not have enough supporting documentation (i.e., evidence) to approve your petition for the Immigrant Visa and Green Card and they are informing you that you need to provide it ASAP. With the NOID, you have up to 30 days to provide the requested supporting documentation, whereas the RFE allows you up to 90 days to provide the requested evidence.
How much does it cost to appeal a denial?
In order to appeal the denial of the Form I-140 petition for the EB-1 Immigrant Visa and Green Card, an applicant must generally file the Form I-290B Notice of Appeal or Motion and pay the $675 filing fee.
Can minor documentation errors lead to a denial?
Yes, the USCIS official who reviews a case has the discretion to deny the EB-1 for documentation errors, to send a Notice of Intent to Deny (NOID), or to send a Request for Evidence (RFE). Thus, it is important to make sure that all of your forms are complete and filled out accurately, plus all of the required documentation must be provided and the government fees need to be paid to reduce the chances that the petition for the EB-1 is denied.
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