EB-1A Case Study: Denial Overturned After Federal Litigation for Startup Founder

Our client founded and leads a startup in the United States. That work had drawn recognition in the field, and USCIS had already recognized the client as an individual of extraordinary ability by approving an O-1A visa.

The EB-1A petition received a Request for Evidence (RFE) and was then denied. To be approved, an EB-1A petitioner must meet at least three of ten criteria and then show that the full record places them among the small percentage at the top of their field. The agency agreed the client met three criteria but concluded the record did not place the client at that level.

The O-1A, which applies a similar standard, was approved on substantially the same record. An O-1A approval does not guarantee an EB-1A approval, but USCIS still has to explain its reasoning when it reaches a different result on the same evidence.

Under the APA, petitioners can ask a federal court to review a denial when the decision lacks a reasoned explanation or does not address important evidence in the record. A judge can set aside decisions found to be “arbitrary and capricious.”

Ms. Wilson has nearly 15 years of experience litigating immigration cases for the U.S. Department of Justice, where she served as Assistant Director in the Office of Immigration Litigation and as Acting Deputy Assistant Attorney General. She filed a lawsuit under the APA on the petitioner’s behalf.

The complaint traced the case from the initial filing through the RFE and the denial. Its main argument focused on consistency. USCIS had found the client to be an individual of extraordinary ability for O-1A purposes, and the complaint asked the agency to explain why the same record led to a different result under a similar standard.

The complaint also reviewed the evidence under each criterion the denial had rejected and asked that this evidence be weighed as a whole, as USCIS’s own policy guidance requires. USCIS reopened the petition and approved it before the government’s deadline to respond to the complaint had passed.

Federal review is one option after a denial. It can be worth considering in three situations: when a decision does not address evidence already in the record, when it conflicts with the agency’s own prior findings about the same person, or when the reasoning behind the denial is unclear. It is not the right step for every case. Whether it makes sense depends on the strength of the underlying petition and the specific reasoning in the decision.

Colombo & Hurd’s federal litigation attorneys can evaluate the underlying filing, the decision, and the available legal options to determine whether a federal challenge could provide a path forward.