So your EB-1 was denied, should you appeal?

imagesWe have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO).  Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money.  However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal.  The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years.  So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials.  The EB-1A category is hard enough to  begin with, with only about a 50% approval rating.  How is it on appeals?  Well, in 2011 there were a total of 146 cases decided by the AAO.  Of those, 137, or 93.9%, were dismissed.   Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision.  In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained.  In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%).  And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so.  However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided).  IN 2011 96.5% of cases appealed in this category were dismissed.  In 2012 94.8% of cases were dismissed.  In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B:  Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area.  In 2011 only 68.8% of cases were dismissed which is actually not bad.  This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW.  This changed rapidly in 2012 and 2013, when the rate of dismissal increased to  97% and 95% respectively.  This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved.  In most cases, refilling the case, either right away or a little while down the road, is usually the best course.  Of course every case is different, and there are certain cases for which an appeal actually makes sense.  Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work.  There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative  (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had).  Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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