O-1 Visa Extension Denial – The Next Steps

Obtaining an O-1 visa can be a difficult process and the qualifications required make the petitioning deliberation very selective. As such, the typical three (3)-year time allotment may not be enough time to complete your contract. Should this be the case, you may want to petition for an O1 visa extension that is added in increments of up to one (1) year. If you are given an O-1 visa extension denial, there are several options to consider.

Why Was My Extension Denied?

Whether you have just received an O-1 extension denial or you are hoping to avoid one, here are some things to know before you take any further action.

The first question you should ask is whether you received a rejection or a denial. These may seem like synonyms, but to the USCIS these are two entirely different categorizations. The Service employs a two-pronged approach to petition adjudication. In the first prong, an evaluating officer will make a cursory inspection of your petition to ensure that you have all of the necessary information completed and that all of the fees have been properly submitted. A rejection means that your petition failed this first prong. To rectify the situation, you should identify the error that was made and, with the help of an immigration attorney, refile your petition.

However, if your petition passes the first prong, it will be taken under closer scrutiny to be evaluated a second time to determine if you have maintained the qualifications to keep your O-1 visa. If your petition fails this stage, it will likely be denied, which will require more intensive measures to overcome.

Here are some common for O-1 visa extension denial reasons and rejection causes:

1. You no longer work in the capacity that earned you the O-1 visa in the first place.
2. The USCIS has determined that the project you were working on no longer requires your presence to be successfully completed.
3. You have in some way violated your O-1 status.
4. There is an error or omission in your petition.
5. Your fees were inadequate or incorrectly filed.

Keep in mind that these are only some of the general reasons that your extension may have been denied or rejected.

The First Steps

As the process for petitioning for an O-1 visa and the subsequent extension petition can be a difficult and time-consuming task, the use of an immigration lawyer is highly advised to help you navigate the entire process. When you are issued an O-1 visa extension denial it is important to begin by contacting your lawyer immediately to assess the avenues that you might take to avoid deportation and even complete your contract.

The latter is not guaranteed, however, and it may be necessary to return to your home country and petition for a new O-1 visa. Fortunately, you can petition immediately upon your return since you chose the O-1 visa over the H1-B, which requires a foreign residency requirement.

Consequences of an O-1 Visa Extension Denial

If you have the petition for an extension on your O1 visa denied, do not panic. Provided that that date of departure given on your I-94 has not passed, you may still remain until that date. If you overstay, however, and your I-94 has expired when you receive an O-1 visa extension denial, you will typically be allowed thirty (30) days to comply with the denial and return to your home country.

If that thirty-day period passes and you are still in the United States, you are at risk for deportation. During this period, however, you are considered out of status and your stay for that period is officially unauthorized.

The USCIS may also refuse to grant you this grace period and so will mandate that you leave the United States immediately. The most concrete advice concerning this is to comply with your I-94 departure date as deportation can result in a permanent or semi-permanent barring from future access into the United States.

It is also important to take into account any other individuals that came with you with O-2, O-3, or other visas related to your O-1 visa. Should you require an O-1 visa extension, they will also require an extension that correlates to the type of visas that they hold.

If they have their visas denied as well, they will need to depart the United States with you or risk facing similar consequences. Unfortunately, as far as the fees attached to this or any O-1 visa extension petitions you may have filed, these remain non-refundable.

Mandatory Post O-1 Visa Extension Denial Correspondence

Once you have returned to your home country after having the extension for your O-1 visa denied, further communication with the USCIS is necessary to allow you to petition for another O-1 visa in the future. The following pieces of information must be submitted to the USCIS upon your return and should also be on your person if and when you return to the United States:

• The original O-1 visa extension denial letter sent to you by the USCIS.
• A photocopy of your passport’s biographical page.
• A copy of an entry stamp in a country other than the United States as proof of departure.
• Your original boarding pass for your departure flight.
• A written document that attributes your overstay to awaiting the result of an O-1 visa extension decision.

What To Avoid

If you receive an O-1 visa extension denial, you may be tempted to implement an offensive strong arming technique with the USCIS. This is not recommended. Any attempts to bribe or coerce the consular may result in your permanent ban from entry into the United States.

Also, avoid contacting politicians or other authority figures to influence the consular. The USCIS is required to follow the regulations regarding your visa and will most likely not alter its decision after one has been made. At the very least, attempted coercion will only result in paperwork and delays in further processing times for visa petitions under potentially different circumstances.

Another option that may seem plausible is to exit the country and attempt to re-enter through Canada or Mexico with a tourist visa to complete your contract with your employer. Attorneys and experts alike advise strongly against this as working in the United States under a tourist visa is prohibited and it will be seen by the USCIS as a violation of your visa. This also may result in a temporary or even permanent bar from future visa petitions.

What to Do

If you receive an O-1 visa extension denial, there are a few options that may or may not be available to you. Keep in mind that your first step should be to find an immigration attorney to review your case and advise you about which option is best for your situation.

Motion to Reopen

The first of two legal motions, a motion to reopen is most appropriate when new evidence has come to light that might change the outcome of your case if it were to be reopened. This is essentially a petition to redo the adjudication provided that there is new evidence to consider.

Motion to Reconsider

In this case, you and your attorney believe that the evaluating officer’s decision was erroneous. A motion to reconsider is a petition to have that officer reconsider the case provided that you have made a convincing argument for your O-1 visa extension approval.

Consider Alternatives

If your extension is denied, you may want to think about trying a different visa classification. As an O-1 holder, you may or may not be in a position to qualify for another nonimmigrant visa. Here are some common visas that could be options for you:

H-1B

This popular visa is ideal for those that hold bachelors degrees and have job offers for specialty positions related to their educational background. However, despite the relatively low barrier to entry, there are some disadvantages to take into consideration. The H-1B is only valid for a maximum of six years, which is a significant decrease from the O-1 visa, which can be extended indefinitely (provided, of course, that you have not received an O-1 visa extension denial).

Also, the H-1B is so popular that demand almost always exceeds supply. So the USCIS holds an annual lottery to randomly select those petitions that will be processed. Depending on the number of people that petition, your chances may be fairly low of being selected.

E Visa

If you are a national of a country that holds a treaty of trade and commerce in the U.S., then you may be able to apply for the E-1 visa for treaty traders or the E-2 visa for treaty investors. For the E-1, you will need to establish principle trade with the U.S. For the E-2, you will need to invest a substantial amount into a U.S. enterprise.

One of the main benefits of an E visa is that you can extend it indefinitely as long as you continue to meet the requirements. However, it can be more difficult to get your green card with an E visa than it is for an O-1 or H-1B visa.

Go for Green

Alternatively, if you’ve received an O-1 extension denial, you might be able to apply for your green card to stay in the U.S. This will allow you to live permanently in the country without the need to constantly apply for extensions.

To go from an O-1 visa to a green card, you will need to either have your employer file an I-140 petition on your behalf or file one yourself (depending on the green card). You may also need to have your employer obtain a PERM Labor Certification for you as well. Once your priority date for your petition is current with the most recent visa bulletin, you can file the I-485 to have your status adjusted.

Here are the three most common green cards that O-1 visa holders tend to pursue:

EB-1A

The requirements for the EB-1A are very similar to those of the O-1. To qualify, you must have evidence of extraordinary achievement (e.g. international prizes, large salary, exclusive memberships). However, keep in mind that just because you qualified for the O-1 does not automatically qualify you for the EB-1A. In fact, if your O-1 visa extension was denied due to issues with maintaining status, you may encounter similar issues with this green card.

The benefit of this green card is that you do not need to have a PERM or a sponsoring employer in order to petition. It also tends to have the shortest priority date waiting times.

EB-1B

This green card is for outstanding researchers and professors. The requirements for this green card also have the potential to align with those of the O-1, which could make this the ideal green card for you. While the EB-1B does require you to have a sponsoring employer, you do not need a PERM.

EB-2

If you have an advanced degree or exceptional ability in your field, you might be able to obtain an EB-2 green card. You will need both a sponsoring employer and a PERM for this one, but if you qualify for the National Interest Waiver, you could have those requirements waived and have the ability to self-petition.

How You Can Help Your Chances for Future Petitions

There is a common misconception that an O-1 visa extension denial will result in being blacklisted, preventing the success of further attempts to petition for another O-1 visa. This is not true as there is no limit to the number of petitions that can be submitted provided that you have respected your I-94 departure date. The important aspect to consider is the reasons behind your O-1 visa extension denial and attempt to alter those in a way that increases your chances of acceptance in the future.

If you have overstayed your I-94 departure date and entered into unauthorized status during your stay in the US, however, you may encounter problems with the consulate as their records will indicate that you violated your visa parameters.

Unfortunately, an appeals process does not exist for those who have had an extension for their O-1 visa denied; so for the safety of your future petitions, it is best to comply with your I-94 departure date and organize another petition with your immigration lawyer from a country outside of the United States.