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What if My O1 Visa Application is Denied?

What to Do if My O1 Visa is Denied? 

If your employer or agent submitted a petition for an O1 visa on your behalf that was denied by the United States Citizenship and Immgiration Services (USCIS), this does not mean you should give up or that you will never be granted an O1 visa. 

O1 visa denials can happen to applicants who are actually qualified for the O1 visa, but their petition fell short of proving that in some way. Thus, applicants who receive a denial should try to improve the parts of their petition that fell short by working with an immigration attorney and working to improve the parts of the petition that the USCIS identified as lacking in its written notice of denial.

Sometimes, however, a petition is denied because a petitioner simply does not meet the eligibility requirements for the O1 visa. Consulting an immigration attorney can be important for applicants to understand whether they are eligible for the O1 visa or not. 

Appeal the Denial 

If an O1 visa petition is denied, the petitioner may file Form I-290B, Notice of Appeal or Motion with the Administrative Appeals Office (AAO) of the USCIS within 30 days after they are served the notice of denial. The beneficiary of the visa does not have the right to appeal. The appeal must be sought by the U.S. employer or agent who is petitioning on behalf of the visa applicant.

When submitting Form I-290B, the petitioner should include a brief that describes the reasons for which the denial was improperly issued.

File a New Petition 

Another option for responding to an O1 visa denial is to simply file a new petition that corrects the shortcomings of the initial O1 visa petition. The same application costs must be paid again for the new petition.

File a Motion to Reopen or Reconsider

Instead of filing an appeal, petitioners may choose to file a motion to reopen or reconsider, also by submitting Form I-290B, Notice of Appeal or Motion within 30 days of the notice of denial.

A motion to reopen a proceeding must provide new facts supported by documentary evidence that were not presented in the initial petition. A motion to reopen cannot be filed using evidence that was previously provided or by reasserting facts that were previously provided.

A motion to reconsider requires that the petitioner establish the AAO’s unfavorable decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence provided in the initial petition at the time of the AAO’s unfavorable decision. A motion to reconsider will not require the AAO to consider new facts or evidence, and it must be supported by some precedent, statutory or regulatory provision, adopted decision, or statement of USCIS or Department of Homeland Security policy that is pertinent to the decision.

Both motions to reopen proceedings and reconsider must include a statement indicating whether or not the unfavorable decision’s validity was or is the subject of a judicial proceeding. If so, the petitioner must provide the court that oversaw and the date of the proceeding, as well as the nature and status of the proceeding.

Petitioners who have filed an appeal to the AAO, and receive an unfavorable decision on their appeal, may also file with the AAO a motion to reopen the proceeding, a motion to reconsider the decision, or a combined motion to reopen and reconsider. The AAO may also reopen a proceeding or reconsider a prior decision on the motion of its own officials.

AAO officials may decide to treat an appeal as a motion to reopen a proceeding or reconsider a petition within 45 days of receiving the appeal. In such cases, if the official does not come to a favorable decision regarding the petition upon reopening and reconsidering, then the petition is forwarded through the AAO’s appeals process. 

Why Was My O1 Visa Denied? 

When an O1 visa petitioner’s application is denied, the USCIS must notify the petitioner in writing the reasons for which their petition was denied. The USCIS notice also describes the petitioner’s appeal rights and their opportunity to file a motion to reopen or reconsider.

Common Reasons the O1 Visa is Denied

Below are some common reasons why your O1 visa might be denied: 

  • Inadequate evidence proving extraordinary ability or achievement; 
  • Failure to appear for interview or fingerprinting; 
  • Disfavorable advisory opinion from peer group; 
  • Applicant or petitioner abandoned their application.

What is the Difference Between Rejection and Denial? 

It is important to understand the difference between rejection and denial when it comes to visa petitions. A petition is considered “rejected” if it fails to include required documentation or paid fees, without consideration to the merits of the applicant’s eligibility for the visa. A petition is “denied” if it fails to meet the eligibility requirements on the merits of the evidence provided with the petition. Thus, it is important that applicants ensure that they complete all steps required by the application, and submit sufficient qualifying evidence. 

What if My O1 Visa is Revoked? 

Revocation occurs when an applicant has already been approved for an O1 visa. The USCIS can revoke an approved petition at any time.

Why are Petitions Revoked? 

There are several reasons why the USCIS may decide to revoke an approved O1 petition. A petition may be revoked automatically simply because the petitioner goes out of business, the visa holder is no longer employed by the petitioner, or because the petitioner filed a written notice of withdrawal of their petition to the USCIS.

The USCIS may also revoke an approved petition because the petitioner becomes otherwise ineligible or because it is discovered that the petitioner did something incorrect or improper when filing their petition. 

In such cases, the USCIS will send the petitioner a Notice of Intent to Revoke (NOIR). A NOIR is sent to petitioners in the following circumstances: 

  • The petitioner violated the statutes and regulations; 
  • The petition was approved in a manner that violated regulation or involved gross error by USCIS official(s); 
  • The petitioner violated the terms and conditions of the O1 visa in some way; 
  • The statement of facts submitted with the approved petition is discovered to be untrue and incorrect; 
  • The O1 visa holder is no longer employed by the petitioner in the same capacity specified in the petition.

NOIRs sent to petitioners must include a detailed explanation of the reasons for the revocation and the amount of time the petitioner has to rebut the revocation, which is 30 days. The USCIS will evaluate all relevant evidence presented in a petitioner’s rebuttal when it decides whether to revoke the petition or not.

Appeal the Revocation

The revocation of approved O1 visa petitions may be appealed by the petitioner to the Administrative Appeals Office of the USCIS only if the revocation was through a Notice of Intent to Revoke. Automatic revocations are not subject to appeal. 

What is the Cost of Appeals or Motions? 

Appeals and motions to reconsider a decision and/or reopen proceedings are requested by filing Form I-290B, Notice of Appeal or Motion. The cost to file Form I-290B is $675. Petitioners who can show an ability to pay this fee can apply for a fee waiver by filing Form I-912, Request for Fee Waiver with the USCIS. 

Petitioners who challenge a denial should consider hiring an immigration attorney to improve their chances of success. The cost of an immigration attorney can vary based on a variety of factors, including the complexity of the petitioner’s case. Petitioners should consult with an immigration attorney to gauge the cost of their assistance through the appeals process. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

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