Immigration Lawyers Toolbox Magazine
APA LAWSUITS CHALLENGING O-1 DENIALS:
1 Year later
Immigration
Brian Green, Esq.
practitioners who file petitions under the O-1 category for individuals with “extraordinary ability or achievement” may have noticed an uptick in badly written and badly reasoned Requests for Evidence (RFEs) and even denials from the U.S. Citizenship and Immigration Services (USCIS) over the past several years. Faced with a frustrating USCIS denial of an O-1 petition, counsel has the choice between three options: 1) refile the case and hope to get a different USCIS adjudicator, 2) file a Form I-290B, or 3) challenge the denial before a U.S. District Court. USCIS data and anecdotal evidence suggest that federal court is often the best choice.
BrianGreen@ GreenUSImmigration.com AAO Statistics on O-1 Appeals While statistics released by USCIS1 show that O-1 petitions are normally approved (at a rate of 88% in 2018), this same data shows that appeals of these denials overwhelming result in the USCIS decision being upheld.2 In Fiscal Year (FY) 2017, the USCIS Administrative Appeals Office (AAO) heard 31 appeals of O-1 denials and sustained (refused the appeal) in 30 cases and remanded one O-1 petition back to the USCIS service center for reconsideration. This resulted in an approximate refusal rate of 97% and a success rate for those filing appeals of around 3%.
by BRIAN GREEN, Esq.
For FY2018, the AAO heard 27 appeals of O-1 denials, refusing all 27 for an obvious 100% refusal rate. The AAO continued this trend in FY2019 (20 appeals refused, none sustained or remanded) and FY2020 (32 appeals refused, none sustained or remanded). In summary, over four (4) years, the AAO heard 109 appeals of denials of O-1 denials and agreed with USCIS in 108 of those appeals, for a refusal rate of over 99%. USCIS does not publish data on the approval rate for O-1 petitions that are refiled after initially being denied. It is safe to assume that USCIS is aware of its prior decisions and will note that an I-129 petition was previously denied for the same beneficiary. While many refilling’s are likely successful, the subsequent approval of an I-129 petition does not erase the prior denial. Only an effective lawsuit can achieve that result. One Year of O-1 Lawsuits Against USCIS
I have been privileged to work on eight lawsuits challenging O-1 denials during the past year. I brought these lawsuits, with co-counsel including David Telfer, Kelly Carr, and Michael Dunn, before the U.S.
1 https://www.uscis.gov/sites/default/files/document/data/AAO_Data_for_Publishing_Thru_ FY20.pdf
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ILT Magazine
2 See, “Learning O-pportunities: Strategies for O-1 Success, by Alexander Magalli”, available online at https://www.klaskolaw.com/temporary-visas/learning-o-pportunities-strategies-foro-1-success/.
Issue No . 3