What Happens If USCIS Denies Your I-140 Self-Petition for the EB-2 Preference Category?

Can you appeal the decision?

If USCIS denies your petition, you can appeal the denial. You can appeal by filing the Notice of Appeal. You must file the notice of appeal within 33 days of the date marked on the decision. The AAO will decide the appeal. The fee is $675 for filing the notice.

Having your I-140 petition denied can be devastating. It is useful to know–before you file the petition–what will happen if USCIS denies it.

Denials in Concurrent-Filing Situations

When you filed your adjustment of status application at the same time you filed your petition, you have done concurrent filing. In this case, when USCIS has denied your petition, the agency will also deny your adjustment application, Form I-485. Further, USCIS will deny any related applications for employment authorization or advanced parole. It is unfortunate but true that when this happens, the government will keep the filing fees you paid, a pretty penny ($1,925).

On a brighter side, guidelines state that the government may motion to reopen and reconsider the denied applications if an appellate body overturns the decision to deny the visa petition.

Will USCIS Kickstart Removal Proceedings for You?

It is important to note that in a June 2018 memo, USCIS announced that it will issue notices to appear (NTA’s) to individuals who (1) US immigration status has expired and (2) have their application for an immigration benefit (e.g., an immigrant petition or adjustment of status application) denied.

You should anticipate that if USCIS denies your I-140 or (assuming you file concurrently) your I-485 application, and you, at the time of the of denial, have no underlying valid immigration status, you will receive a notice to leave the United States. If you do not leave the US, you may receive a notice to appear in front of an immigration judge. The judge would decide whether the government should physically remove you from the US and if you are entitled to legal relief that allows you to remain in the country.