Pros and Cons of Appealing EB1A Alien of Extraordinary Ability Petition Denial

WASHINGTON - April 30, 2018 - PRLog -- The Law Offices of Victoria V Kuzmina, an employment immigration law practice, often encounters a request to file an appeal from new clients whose EB1A Alien of Extraordinary Ability petition was denied. Please visit our website to read a full article.

Your EB1A Petition Was Denied. Now What?

If the USCIS denied your EB1A petition, you have the right to appeal their decision. More often than not, the Administrative Appeals Office (AAO) will have the appropriate jurisdiction over the appeal.

First, only the person who filed the original I-140 petition has the right to file an appeal. Most appeals are filed on Form I-290B within 30 days of the decision (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.

Appeal Timeline

First, the USCIS field office that denied the 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. Some cases may take longer. For example, additional documentation may be needed, or the case may be more complex.

How many EB1A Petitions Get Denied or Approved on Appeal

While specific data are not currently available, 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, 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

Our clients' personal circumstances will dictate whether refiling an EB1A petition anew would be more beneficial compared to filing an appeal. If it becomes apparent that an appeal would not be in their best interests, then we will prepare a brand new EB1A petition. Also, one of the biggest benefits of filing a new I-140 petition is the 15-day timeline associated with the premium processing that is currently available for the EB1A cases.

Conclusion

In most situations, if the USCIS denied your EB1A petition and you believe you have a strong case, then you may choose to appeal. However, 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.