I heard recently that after a denial for EB-1, EB-2, or EB-3 you wouldn’t be able to reapply — supposedly that’s a new interpretation from the Trump administration. Has anyone heard about this? Are there any official documents or sources?
Those are rumors — there’s no official document with such a ban. In practice a repeat EB petition is accepted; it’s just that if there’s already been a denial, the officer scrutinizes it more closely. Getting an O-1 after that is indeed harder because of immigrant intent, but that’s a different matter.
6 Likes
Refiling after a denial is a common, practical route — I did it myself: first time I got denied for EB-1A, the second time it was approved. There are no official documents banning it, and the lawyers would definitely have been shouting if that were actually the case. The officer sees there was a denial, but if the case is properly reworked, it’s not the end of the road.
6 Likes
A denial notice is basically a checklist for reworking the case. For a colleague, when they resubmitted an EB-1A after a denial, the officer checked the new petition specifically against the criteria that had been questioned in the previous decision — citations and peer review. They added a table of independent citations (out of 200 total, 131 were independent) and three peer reviews for journals with IF above 5 — it was approved a second time without an RFE.
6 Likes
Regarding O-1 and immigrant intent - there’s a nuance here. An EB denial by itself doesn’t bar an O-1; roughly speaking, intent is shown by an active immigrant petition, not by a history of denials. If the I-140 is withdrawn or not pending - there’s no formal intent.
On re-filing: a reworked case is considered on its own merits; when I looked into this, de jure there’s no rule “once denied, that’s it”. That said, the officer does look at the prior decision, and if you haven’t fixed what caused the denial - the chances aren’t any better.
6 Likes
About the consular stage I’ll add — USCIS and the consular officer are different chains with different standards, and that matters if you plan to get an O-1 visa stamp after an EB history. A colleague had an approved O-1 petition, but at the interview the officer specifically asked about the EB petition history — a pending I-140 carries more weight than a withdrawn one. There’s a nuance: an I-140 on appeal is formally still pending, and that’s a different scenario than a fully closed case.
6 Likes
About the I-140 being on appeal — it’s still pending. I had a situation with revocation of the first petition, and precisely because a new I-140 was filed in parallel, the lawyer explained that the intent doesn’t formally disappear. If nothing is pending at all, the consular officer views it completely differently; that’s a fundamental difference. So the appeal is active — it’s not the same as a closed case anymore.
6 Likes