I received an EB-1 denial and don’t know what to do now. Is this the officer’s final decision or are there options to do anything? Can you appeal or only reapply? I was also thinking about the O-1 visa as a backup — or does a denial like this make that more complicated too?
You can apply for O-1, but the petitioner should be ready to explain the EB-1 denial.
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Does the fact of an EB-1 denial itself seriously hurt an O-1, or if you explain the reason properly is it not critical? Nobody mentioned an appeal — is that actually feasible, or is it easier to reapply?
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Appeal to the AAO — Form I-290B, 30 days from the date on the denial notice. For O-1 the standard is different; I saw a case where someone filed an O-1 after an EB-1 denial and got approval — the officer evaluates the criteria independently.
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There are two different paths and the choice depends on what exactly is written in the denial notice — if the officer misinterpreted the criterion, that goes to the AAO, where another officer reviews the case anew. If it’s just a shortfall in evidence, re-filing with a strengthened package is faster. For O-1, an EB-1A denial doesn’t actually block anything — I’ve seen a case where someone received O-1 approval four months after an EB-1A denial; the officer evaluated it under the O-1 standard independently.
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Reapplying with a new package isn’t “giving up” — AAO just takes about another year to a year and a half.
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The key point is what’s actually in the denial notice: if it only says “evidence,” the O-1 isn’t blocked — a different standard applies.
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The main question is the current status. If there’s nothing valid, an O-1 through your employer as the petitioner is faster than any refile — with premium processing; here in SF we got approval in 21 business days without an RFE.
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