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EB-2 NIW or EB-1A Denied? Your Next Steps

Your EB-2 NIW or EB-1A petition was denied. How to read the decision, appeal or motion deadlines, refiling, and what the denial does and does not affect.

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A denial is a decision about one petition

A denied Form I-140 for an EB-2 national interest waiver (NIW) or EB-1A does not mean you can never qualify. It means this petition, with this evidence, did not meet the standard.

Step 1: Find the exact reasons

  • For NIW: did USCIS find you do not meet the EB-2 basics, an advanced degree or exceptional ability? Or that you do not meet one of the three Dhanasar prongs?
  • For EB-1A: did USCIS find fewer than three criteria met? Or did it accept three criteria but decide against you in the final merits review?

Each reason needs a different fix. Write down every finding before you decide anything.

Step 2: Know your options

  • Appeal to the Administrative Appeals Office (AAO), if your decision allows it.
  • Motion to reopen, with new facts and evidence.
  • Motion to reconsider, if USCIS applied the law or policy incorrectly.
  • A new petition that addresses the weaknesses.

Step 3: Check the deadline

Appeals and motions are filed on Form I-290B. In general they are due within 30 days of the decision, or 33 days if it was mailed. Follow the dates in your decision and the current I-290B instructions.

Step 4: Fix the real weakness

More pages do not fix a weak case. Stronger, better explained evidence aimed at the specific findings does. For a new petition, reorganize the evidence so each requirement is easy to find and clearly proven.

Step 5: Understand what the denial affects

A denied I-140 by itself does not end a separate nonimmigrant status, such as H-1B or O-1. But if you also filed an I-485 based on that I-140, the I-485 is affected too. Check both.

An immigration attorney can help you choose between an appeal, a motion and refiling. This is general information, not legal advice. Check the current USCIS instructions for your form, or ask an immigration attorney about your own case.

Frequently asked questions

Can I refile an NIW after a denial?

Yes. There is generally no waiting period to file a new I-140. A new petition should address the reasons in the denial.

Should I appeal or refile?

It depends on why USCIS denied the case. An appeal or motion argues the decision was wrong. A new petition is often better when the evidence itself was weak. An attorney can help you decide.

Does an I-140 denial cancel my H-1B?

Not by itself. The I-140 and your H-1B status are separate. A pending I-485 based on the denied I-140 is affected, though.

Organize your NIW documents

Add the documents you choose, label each exhibit and build an accurate index. You can see every page for free, and your files never leave your device.

Start my EB-2 NIW packet, free

Official references

Case Album is independent software, not affiliated with USCIS. This guide is general information, not legal advice. Read our editorial standards.

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