Immigration law is rarely an easy road to navigate. Without help, the complicated processes and documents can be overwhelming, especially with an EB-1 green card. If you have experienced an EB-1A denial or wish to avoid one, keep reading for the top 4 reasons for denial and rejection as well as what to do if you have already been denied.
We can better understand the reasons for an EB-1A denial by taking a look at what is involved with qualifying for this prestigious immigrant visa and the requirements.
Policy Update- On September 12, 2023 USCIS updated the manual to offer clarifying guidance on examples of evidence that may satisfy the relevant criteria for employment first-based preference applicants, as well as how USCIS officers evaluate the totality of the evidence for eligibility. See the complete details in this EB-1 policy update post.
The EB-1A is a green card designed for those who can demonstrate extraordinary ability in the areas of science, business, education, art, or athletics. It is the highest level one can achieve in employment-based immigration and it is not an easy green card to obtain.
To qualify for an EB-1A green card, you must submit evidence that you have been awarded an internationally-recognized prize such as the Nobel Prize or the Pulitzer Prize. If you are unable to present evidence of this, you can alternatively submit evidence that you have:
- Received a slightly lesser national or international recognition award or prize
- Doesn’t have to carry the same level of recognition and prestige as a Nobel Prize or other significant award. Examples of qualifying awards include those from well-known institutions, doctoral dissertations, awards from internationally recognized conferences, etc.
- Obtained membership in prestigious associations and organizations/institutions
- Membership in these associations must not be based solely on payment of a fee, a requirement by certain occupations, etc.
- Assessed the work of others
- Contributed highly significant original artistic, scientific, or scholarly works in the field (i.e., newspaper articles, academic journals, major online publications, etc.)
- Had achievements published in major trade and media announcements
- Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field for the specific classification
- Works displayed in an art exhibition or show
- Performed in a leading or critical role for organizations or establishments that have a distinguished reputation
- Media success in the performing arts demonstrated in box office receipts or entertainment sales
- Commanded a high salary, or other significantly high remuneration for services in relation to the field – USCIS does not interpret the phrase “has commanded” to mean that the person must have already earned such salary or remuneration in order to meet the criterion. A credible contract or job offer showing prospective salary or remuneration can establish the compensation.
Ultimately, you need to prove to the USCIS that you are in the top percentile of individuals in your field. You must also demonstrate that you intend to continue working in that field while in the U.S. Keep this in mind as you gather evidence for your case.
What is the Difference Between Rejection and Denial?
It is also important for us to distinguish between rejection and denial. Many people use these words interchangeably in their daily lives, but in immigration law, they are two different things If your petition is rejected, this means that simple, easily-fixed issues prevented it from reaching the decision stage. Essentially, a rejection means that no officer evaluated your case.
A denial, on the other hand, means that, after evaluating your case, an immigration officer deemed that you do not meet the qualifications for an EB-1A green card. These are more difficult to handle and require the help of an immigration attorney all the more.
Why Was My EB-1A Denied or Rejected?
There are a plethora of reasons for why your EB-1A green card may have been denied or rejected. However, we will cover the top four here as they pertain to the most common reasons for EB-1A denial.
1. Mistakes on the Petition
One of the most common reasons for rejection is the presence of simple errors made in the petition. Whether a field was accidentally left blank or the right information was entered into the wrong space, there is a number of hiccups that can cause a rejection.
Being meticulous is the name of the game here. You need to quadruple check every document you send and every field that is completed to make sure that nothing was left out and that nothing is contradicting or incorrect. Hiring an immigration attorney is the best way to ensure that everything was filed correctly.
2. Criminal History/Violation of Visa Status
It goes without saying that committing a crime in the U.S. will disqualify you for a green card. There are also many cases in which an applicant’s past criminal history in his or her own country has caused an EB-1A denial. Make sure your record is clean or expunged before petitioning and work with your lawyer to ensure that nothing of this sort will hinder your petition.
Also, any violations of past visa statuses can seriously damage your chances of approval. Overstaying your visa validation period or not maintaining your status can cause you to be considered “out of status” which can lead to temporary or permanent bars from further attempts to enter the U.S.
3. Issues with Fee Payment
This is another issue that usually results in having your EB-1A rejected. Problems with fee payment can include having a check bounce or not paying the right fee. The forms, policies, and fees are constantly changing in the immigration world. Without an attorney, it will be up to you to make sure that you are paying the correct fee to the correct place.
4. Issues With Your Qualifications
The final and most comprehensive reason for an EB-1A denial is related to complications with your eligibility. “Extraordinary ability” is a broad and vague phrase that is ultimately up to the interpretation of the evaluating officer. If he or she does not think that your evidence meets the requirements, then your EB-1A will be denied.
Knowing this, it is important to have a rock-solid case before your submit your petition. Simply showing that you have three of the requirements may not merit you the green card. You also need to advocate for each piece of evidence and demonstrate how it fulfills each requirement.
The best way to do this is to have your attorney advocate each point on your behalf. An experienced attorney will have several successful cases under his or her belt and be able to guide you based on past successes.
EB-1A Denial Rate
The USCIS has a published report of the EB-1A denial rate. Even though the most recent report was from 2010, we can still extrapolate the numbers to this year.
In 2010, the denial rate for EB-1A green cards was 38%. 1,998 petitions were denied while 3,200 were approved. In previous years, this number had been higher with some years reaching up over a 50% denial rate.
What to Do After an EB-1A Denial?
The first thing to do if your EB-1A has been denied is to hire an immigration attorney. Moving forward from there will greatly increase your chances of success and save you the headache of going through the complicated legal processes. Here is what you should discuss with your lawyer.
Unless it is expressly outlined in your EB-1A denial or rejection letter, there is nothing preventing you from re-filing your petition. This is a simple solution that is most effective when the rejection was due to a simple information or payment error. Unfortunately, you will still need to go through the processing time and pay the filing fees again.
However, if your petition was denied on account of your criminal record or your qualifications, simply refiling will most likely only end in being denied again. You and your attorney would need to present new evidence showing that your circumstances have changed in order to have a chance at approval.
Motion to Reconsider or reopen
You can also file a motion to have the decision reconsidered or to have your case reopened if more evidence has come up that better supports your case. This involves sending a request to the officer who evaluated your case to reconsider in the light of this new evidence. If you file without new evidence, your EB-1A will likely receive a second denial. Specifically, here are the differenced between reconsidering and reopening a case:
- Reconsidering a case means that you and your attorney are prepared to present legal arguments demonstrating that the officer’s decision was wrong.
- Reopening a case means that new facts have arisen that could alter the outcome of the decision.
If you believe that the decision was a mistake or that the evidence was not fully examined, then you may want to consider appealing directly with a third party to have the case evaluated by the Administrative Appeals Office (AAO). However, this is not always the best decision as the AAO tends to uphold the decision of the adjudicating officer rather than overturn it.
If you went through consular processing and your petition was denied, you might find that your denial letter states that the decision cannot be appealed. In this case, you will need to consider one of the other alternatives.
As difficult as it may be, you may need to be open to the idea of pursuing a different green card opportunity. Some other options that compare to the EB-1A are the EB-5 green card for investors and the EB-2 National Interest Waiver for those whose work will have a significant positive impact on the U.S.
You may also be able to apply for an EB-2 or an EB-3. However, these options require you to have a job offer from a U.S. employer and a PERM Labor Certification. While far from ideal, they do present an opportunity to immigrate to the U.S. through employment.
How VisaNation Law Group Immigration Attorneys Can Help
As we’ve covered throughout this post, the most important factor when it comes to avoiding an EB-1A denial is having an immigration attorney. From the ground up, a lawyer will make sure that your case is waterproof before it even makes it to the USCIS. If your petition has already been denied, then an attorney is essential to exploring legal alternatives such as motions, appeals, and filing for other green card options.
VisaNation Law Group expert attorneys have years of experience dealing with successful EB-1A cases. Whether it’s filing for the first time or dealing with a denial or rejection, there’s nothing we haven’t seen here in our office. To get in touch with us, and to schedule your consultation, feel free to fill out this contact form and tell us a little bit about your case.