Conversations with Pryde - P-1 and O-1 Visa Denials 

March 25, 2022 Sherrod Seward

Conversations with Pryde - Visa Denials

Conversations with Senior Attorney Pryde. Today we will discuss bad news.

Unfortunately we have experienced a depletion in the quality of adjudication over the past 8 months and denials are going to happen. Adjudicating officers now have more confidence to ignore precedent, set by their own offices, to deny cases that are perfectly fine.

Our law firm does as much combat sports immigration work than any other law firm in the Nation. We have this down to a science with hundreds of approvals using our methods of filing. And why we are consistent, the adjudicating officers are not.

When it comes to O-1 and P-1 visas we have a model that has worked for hundreds of petitions that are carefully tailored to the requirements of USCIS. This is especially true with MMA petitions where the agent is a petitioner. We actually appealed a case over the itinerary and won.

This was done with an I-290(B) appeal. Long story short is we do a lot of petitions for MMA fighters that are not currently signed to the UFC. We had a case denied and we successfully appealed showing USCIS their own rules about itinerary issues with P-1 visas for unsigned fighters. And now, they are ignoring that from time to time.

We have also experienced ridiculous statements by Adjudicating Officers in recent months like the following:

● Being a member of a National Basketball Team is not significant because there are 12 players on the team

● UFC Fight Pass only shows UFC events (not true at all)

● A WBC Latin Championship is not significant enough to garner acclaim in more than one country

● ESPN Boxer denied because exact dates of his fights for the next month were estimated Awful adjudications.

So what shall we do in case of a denial?

There are three realistic choices which can be done separately or all at the same time. You can appeal the case back to USCIS, refile the case, and/or litigate the case. Each has their own benefits and timelines. In most circumstances, the best option is to refile and appeal the case at the same time.

Filing a I-290(B) Motion

In this method you file a motion that has a $675 fee. We ask USCIS to both reopen and reconsider the case with two separate arguments. Typically, an applicant has 33 days to appeal, but right now as we speak, there is another 60 days to appeal. This option is great to keep lawful presence but has mixed results for changing an adjudication, most often USCIS will keep with their own decision. We have been successful in changing denials to approval under this method.

it's best to often refile the case, even with the I-290B appeal

It's best to also refile the case because the I-290 appeals take a long time, the refiled petition often gets approved before the I-290B is adjudicated. Many times, clients will use our petitioner service to send the new petition to the other service center. We have had success plenty of times getting the second petition approved. However there is a trend to rubber stamp denials under the new administration.

Litigation: This is going to be a new frontier for us.

There are not many cases at all that are federally litigated for P-1 and O-1 visas. Our immediate goal is to be very aggressive with federal litigation in the near future to be leaders in this area. The industry is depending on us to hold USCIS accountable for horrible decisions and this is the only way to do that. There are very few options to hold them accountable so we are going to take them to court.

Options for staying in the United States after a petition is denied and status has expired.

When a visa is denied, no matter what happens, it is a terrible idea to be without status for over 180 days in the United States. This will trigger a 3 or 10 year ban from entering the United States.

The only way to stay in the United States under this circumstance is to file a motion to reconsider and another petition.

Right now, Motions to Reconsider can be filed up to 60 days after the date of denial. The Motion to Reconsider can be timely filed, and then another petition can be issued to change status.

Note that if the case is denied and 180 days have passed since the expiration of the visa, the applicant is now in a much worse position than when they started.

Accrual of unlawful presence is tolled for the time the appeal (I-290B) is pending.

If the appeal is successful, e.g., results in grant of change of status, then, he does not accrue any unlawful presence.

If, however, the appeal is unsuccessful, then he accrues unlawful presence from the I -94 expiration date.

You really must be mindful of the 180th day after the I-94 expired, and of the likelihood of success of the appeal. And, clients have to understand the risks and accept them, too.

Example of overstay issues when appealing a case:

Example, if you file the I-290B; and let’s say premium process an O-1 visa and the O-1 petition is approved; then, he could leave the USA without triggering a 3/10 year bar in order to consular process for the temporary O-1 visa abroad,vI-290B tolls the accrual of unlawful presence.

So, departure while the I-290B is pending is okay, provided the I-290B had been filed prior to 180th day after the I-94 expired.

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