What to Do If Your EB-1A Petition Is Denied

If your EB-1A case gets denied, you have options.

• You can refile.

• You can wait and build your profile.

• Or you can sue the government.

Here's what I tell clients about that last one:

Filing a lawsuit against USCIS has become more popular in recent years. Ten years ago, almost nobody was doing it. But now more attorneys are becoming comfortable with litigating over what they believe are government decisions that are inconsistent with the regulations.

That said, the percentage of denied cases that actually move forward with litigation is still very, very small. The majority of people either don't move forward at all, or they wait to see if they can strengthen their profile and file a new case later.

In some situations, litigation doesn't make the most sense. There isn't that much benefit from trying to use a particular denied case versus waiting a couple of months, adding new materials to the petition, and filing again.

I do not advise moving forward with litigation just because someone wants to try everything possible, even if their case isn't that strong. A weak case can actually hurt the whole EB-1A extraordinary ability field. It can create case law based on that negative outcome that ends up being detrimental for future applicants.

So if you are considering this route, make sure you have the right case for it. Specifically, it should be very clear that the government did not follow the process they are supposed to follow when reviewing the case.

But for the right case, it is an option that attorneys are using more now than ever before.