By Gabriela Lima
Brazilian Licensed Attorney | LL.M. in International and Comparative Law, Indiana University
A denial hurts. There is no other way to say it.
For many extraordinary ability professionals, an EB-1 denial feels deeply unfairāespecially when youĀ knowĀ your profile is strong. You know you have built a solid career. You know your accomplishments are real, measurable, and internationally recognized. And often, you also know that the attorneys who represented you did a careful, thoughtful job preparing the petition.
So when the denial letter arrives, the frustration is compounded by confusion. At the end of the decision, USCIS tells you that you āmay appeal.ā And immediately you think that is exactly what you will do because this denial is completely unfair!Ā
But can you really appeal and will it be effective? And more importantly:Ā should you?
In practice, I found out that most experienced U.S. immigration attorneys almost never recommend appealing a denied EB-1 petition. This is not because appeals are unavailableābut because in practice they are considered theĀ least effectiveĀ path forward.
Below, I explain why.
EB-1 appeals are filed with the Administrative Appeals Office (AAO), a division of USCIS. While the word āappealā suggests a fresh review, that is not how the process works in reality.
First of all,Ā in anĀ EB-1 appeal the AAO generally reviews whether the original officer made aĀ legal or procedural errorĀ based on theĀ same record that was already submitted.
Therefore appeals tend to succeed only when USCISĀ clearlyĀ misapplied the law, ignored binding policy, or made a demonstrable procedural mistake. In EB-1 cases, this is uncommon.
But because most EB-1 denials are discretionary. Officers conclude that:
Evidence does not rise to the level of sustained national or international acclaim
Achievements are impressive but not extraordinary under USCIS standards
The final merits analysis does not sufficiently distinguish the petitioner from peers
Discretionary determinations are precisely the type of decisions the AAO is least likely to overturn.
Motions to Reopen or Reconsider Face Similar Obstacles
Some petitioners consider filing a Motion to Reopen or a Motion to Reconsider instead of an appeal. While these options allow slightly more flexibility, they present another challenge: they are typically reviewed byĀ the same office that issued the denial.
From a practical standpoint, experienced attorneys know that USCIS rarely reverses its own decisions unless there is an obvious mistake. Simply presenting additional evidence or re-arguing the same points often leads to the same outcomeāafter months of waiting.
Plus, many applicants are surprised to learn thatĀ appeals and motions are not free, there is a fee for each one of them and they also take far longer than expectedāoften much longer than filing a new petition
Refiling Is Usually Faster, Stronger, and More Strategic
In contrast, filing aĀ new EB-1 petitionĀ allows attorneys to do what appeals do not:
Rebuild the case from the ground up
Address each denial point directly and strategically
Add stronger, clearer, and more targeted evidence
Improve expert letters, documentation, and narrative structure
Strengthen the final merits analysis under current adjudication trends
For many clients, especially those managing visa timelines or career transitions, speed and flexibility matter.
Appeals Can Create Long-Term Risks
Another factor attorneys consider is theĀ written recordĀ created by an appeal. AAO decisions, even when anonymized, become part of the petitionerās immigration history.
A detailed appellate denial can:
Lock weaknesses into the official record
Make future filings harder to reposition
Increase scrutiny in later USCIS or consular reviews
Refiling, by contrast, allows the case to move forward without being constrained by a formal appellate rejection.
This Is About Strategy ā Not Discouragement
When immigration attorneys advise against appealing an EB-1 denial, it is rarely because they believe the client is not qualified. In fact, it is often the opposite.
The recommendation not to appeal reflects an understanding of how EB-1 cases are actually adjudicatedāand which strategies offer the highest likelihood of success.
Sometimes the best path forward is not to fight yesterdayās case, but to build tomorrowās case better.
Final Thoughts
Seeing the word āappealā in a denial notice can feel like theĀ obvious path when you feel unjustly denied. But for most U.S. immigration attorneys with many years of experience in the field, this is not the case.Ā
For most EB-1 applicants, appeals are slow, rigid, and statistically unlikely to succeed. Most attorneys will recommend a carefully prepared refileāgrounded in stronger evidence, clearer positioning, and refined legal strategyāoffers a far more effective way forward.
Every case is unique. But understandingĀ whyĀ appeals are rarely recommended empowers extraordinary professionals to make informed decisions at a moment when clarity matters most.