If you were granted an O-1 visa and applied for an extension toward the end of your 3-year validity period, which resulted in a denial, it’s key to understand the common denial reasons and the various options to consider. In this guide, we provide an overview of the most common O-1 visa denial reasons and detail what you can do if you find yourself in this situation.
Why Was My O-1 Extension Denied?
Whether you have just received an O-1 extension denial or you are hoping to avoid one, here are some things to know before you take any further action.
The first question you should ask is whether you received a rejection or a denial. These may seem like synonyms, but to the USCIS, these are two entirely different categorizations.
USCIS employs a two-pronged approach to petition adjudication. In the first prong, an evaluating officer will make a cursory inspection of your O-1 extension petition to ensure that you have covered the basics, such as filling out the forms completely with signatures, and verifying whether all of the fees have been properly submitted. A rejection means that your petition failed this first prong. To rectify the situation, you should identify the error that was made and refile your petition.
However, if your petition passes the first prong, it will be taken under closer scrutiny to be evaluated a second time to determine if you have maintained the qualifications to keep your O-1 visa. If your petition fails this stage, it will likely be denied, which will require more intensive measures to overcome.
Here are some common reasons for O-1 visa extension denial and rejection:
- You no longer work in the field that earned you the O-1 visa in the first place.
- The USCIS has determined that the project you were working on no longer requires your presence to be successfully completed.
- You have in some way violated your O-1 status. An example could be performing work for a company that is not your agent or employer, overstaying your original visa, or even a criminal offense.
- There is an error or omission in your petition.
- Your fees were inadequate or incorrectly filed. Your fees must be submitted correctly. When filing by mail, you can no longer pay your fees by check or money order. They must be paid by credit, debit, or prepaid card by completing Form G-1450, Authorization for Credit Card Transactions, or from a U.S. bank account by completing Form G-1650, Authorization for ACH Transactions.
- Your petition was filed at the wrong address. USCIS has very specific locations for your petition, which vary depending on the state of the petitioner. Locations also differ depending on whether the petitioner files with premium processing or not.
Keep in mind that these are only some of the general reasons that your extension may have been denied or rejected.
Next Steps After an O-1 Extension Denial
There is a common misconception that an O-1 visa extension denial will result in future petitions being rejected, preventing the success of further attempts to petition for another O-1 visa. This is not true, as there is no limit to the number of petitions that can be submitted, provided that you have respected your I-94 departure date. The important aspect to consider is the reasons behind your O-1 visa extension denial, and attempt to address the reason in a way that increases your chances of acceptance in the future.
After you are issued an O-1 visa extension denial, the first step is to verify your I-94 date from your initial O-1 visa approval. This date informs you of when you must depart the country, and provides you with a clear timeline of how long you have to decide on your next move. We highly advise contacting your lawyer immediately to assess the avenues available to remain in the United States.
Staying may not be guaranteed depending on the situation, and it may be necessary to return to your home country and petition for a new visa.
Appeal Options
If you receive an O-1 visa extension denial, there are a few options that may or may not be available to you:
Motion to Reopen
The first of two legal motions, a motion to reopen, is most appropriate when new evidence has come to light that might change the outcome of your case if it were to be reopened. This is essentially a petition to redo the adjudication, provided that there is new evidence to consider.
Motion to Reconsider
In this case, you and your attorney believe that the evaluating officer’s decision was erroneous. A motion to reconsider is a petition to have that officer reconsider the case, provided that you have made a convincing argument for your O-1 visa extension approval.
Consequences of an O-1 Visa Extension Denial
If you still have time left on your I-94 after an extension denial, you may continue working with your initial petition and begin preparations to either apply for another visa, appeal the decision, or return home.
If you are already past your I-94 date and your O-1 extension is denied, it’s important that you promptly leave the country to avoid a prolonged overstay, which can impact your ability to return to the United States. While you will typically be allowed thirty (30) days to comply with the denial and return to your home country, you should consult with an attorney to verify the instructions provided with your denial.
It is also important to take into account any other individuals who came with you via O-2, O-3 status who were dependent on your approval. They will also be required to leave the country as well.
Consider O-1 Visa Alternatives
If your extension is denied, you may want to change your status to a different visa classification. As an O-1 holder, you may be in a position to qualify for another nonimmigrant or immigrant visa. Here are some common visas that could be options for you:
H-1B
This popular visa is ideal for those who hold bachelor’s degrees. Similar to the O-1, you must have a sponsor, and the job role must be closely related to your degree. Despite the relatively low barrier to entry, there are some disadvantages – the H-1B is only valid for a maximum of six years.
Also, the H-1B is so popular that demand almost always exceeds supply. Thus, USCIS holds an annual lottery to select registrations, meaning success isn’t guaranteed unless you find a cap-exempt organization to sponsor you.
E Visa
If you are a national of a country that holds a treaty of trade and commerce in the U.S., then you may be able to apply for the E-1 visa for treaty traders or the E-2 visa for treaty investors. For the E-1, you will need to establish principal trade with the U.S. For the E-2, you will need to invest a substantial amount into a U.S. enterprise.
One of the main benefits of an E visa is that you can extend it indefinitely as long as you continue to meet the requirements. However, it can be more difficult to get your green card with an E visa than it is for an O-1 or H-1B visa.
Green Card Options
Alternatively, if you’ve received an O-1 extension denial, you might be able to apply for your green card to stay in the U.S. This will allow you to live permanently in the country without the need to constantly apply for extensions.
To go from an O-1 visa to a green card, you will need to either have your employer file an I-140 petition on your behalf or file one yourself (depending on the green card). You may also need to have your employer obtain a PERM Labor Certification for you as well. Once your priority date for your petition is current with the most recent visa bulletin, you can file the I-485 to have your status adjusted.
Here are the three most common green cards that O-1 visa holders tend to pursue:
EB-1A
The requirements for the EB-1A are very similar to those of the O-1. To qualify, you must have evidence of extraordinary achievement (e.g. international prizes, large salary, exclusive memberships). However, keep in mind that just because you qualified for the O-1 does not automatically qualify you for the EB-1A. In fact, if your O-1 visa extension was denied due to issues with maintaining status, you may encounter similar issues with this green card.
The benefit of this green card is that you do not need to have a PERM or a sponsoring employer to petition. It also tends to have the shortest priority date waiting times.
EB-1B
This green card is for outstanding researchers and professors. The requirements for this green card also have the potential to align with those of the O-1, which could make this the ideal green card for you. While the EB-1B does require you to have a sponsoring employer, you do not need a PERM.
EB-2
If you have an advanced degree or exceptional ability in your field, you might be able to obtain an EB-2 green card. You will need both a sponsoring employer and a PERM for this one, but if you qualify for the National Interest Waiver, you could have those requirements waived and have the ability to self-petition.
Our Experience with O-1 Extensions
Recently, our legal team supported a magnetic design engineer with an O-1A visa extension. The challenge was demonstrating that her expertise in making MRI technology more compact, energy-efficient, and accessible was critical to the success of a project with major public health implications. We developed a bulletproof petition emphasizing Celine’s scientific leadership, peer-reviewed contributions, and the national interest of her ongoing work, leading to a successful extension.
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