I-140 Denial Appeals: Common Grounds and Success Rates 2026

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The I-140 denial notice tells you which regulatory criteria or policy standards USCIS concluded you failed to meet. For EB-1A, that means whether you fell short at the criteria count step, the final merits determination, or both. For EB-2 NIW, it identifies which Dhanasar prong was not met. 

However, it does not always explain why the evidence you submitted was insufficient in a fixable way, or whether the officer applied the law correctly.

You have 30 calendar days from the date USCIS mailed the notice to file Form I-290B. Reading the denial correctly before those 30 days expire is the most important. 

Beyond Border attorneys have collectively handled 4,000+ immigration cases across EB-1A and EB-2 NIW categories. This article is written with that practical experience, providing guidance on what to do if you receive an I-140 denial.

Common I-140 Denial Reasons for EB-1A and EB-2 NIW

EB-1A: Extraordinary Ability

USCIS evaluates EB-1A petitions under two frameworks: first, whether the evidence meets at least three of the ten regulatory criteria; then, whether the totality of the evidence establishes sustained national or international acclaim and that the petitioner is among the small percentage at the very top of the field.

Here are some common I-140 denial reasons on an EB-1A visa application; 

1. Failure at the final merits determination

Meeting three criteria is a threshold, but it does not guarantee approval. According to Beyond Border attorneys, the most important thing is that your evidence, when taken as a whole, shows you belong at the very top of your field. Petitions that pass the criteria but fail at establishing you as among the top per cent in your field contain evidence that lacks sustained, field-wide recognition. For example, citations concentrated in one paper, judging invitations from panels USCIS found insufficiently distinguished, or press coverage that mentions you as part of a company story rather than for individual achievement.

2. Weak or generic recommendation letters

Recommendation letters that merely sing the praises of the beneficiary or come from individuals with a clear, direct relationship with the beneficiary lack any weight. The best recommendation letters are from independent experts with no supervisory or collaborative relationship with you, who explain in specific terms why your work has had measurable significance in the field. If a denial is primarily due to weak letters, the fix is to engage different independent expert writers. 

3. Insufficient evidence of sustained acclaim over time

A single award, a single highly cited paper, or recognition concentrated at a single institution does not establish the ongoing, field-wide recognition the visa requires. USCIS looks for evidence that recognition has been maintained, not just once achieved. A career with strong credentials two years ago, but no recent evidence of standing in the field is a problem.

4. Prior RFE response that did not resolve the issue

If your denial followed an RFE, the officer already identified the gap. A motion to reopen based on the same type of evidence you submitted in the RFE will not lead to an approval. You must include new, documented evidence that was not available or not submitted at the time of the RFE response.

5. Inadequate documentation of impact or recognition. 

For criteria such as original contributions of major significance or judging, USCIS requires that the significance and quality be documented with independent evidence. Stating that a contribution was significant without citation to data, evidence of industry adoption, or independent expert commentary does not meet the standard.

EB-2 NIW: National Interest Waiver

EB-2 NIW petitions are evaluated under the three-prong framework established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). USCIS has also updated the Policy Manual to clarify how officers apply the framework, with particular effect on what qualifies under the first prong. 

1. Failure on Prong 1: Substantial merit and national importance

A proposed endeavor described in broad terms without identifying specific work, timelines, and national-level impact gives the officer nothing concrete to evaluate. Your proposed endeavor must be distinct enough that an officer can assess whether it carries national importance.

2. Failure on Prong 2: Well-positioned to advance the endeavor

According to Beyond Border attorneys, this prong fails when a petition describes credentials without connecting them directly to the specific proposed endeavor. The question is not just whether you have qualifying credentials, but whether you have the track record to advance your specific work. Publications, patents, industry implementation evidence, and documented past successes relevant to the stated endeavor are what USCIS looks for here.

3. Weak or generic recommendation letters

Peer review letters that simply sing your praises without addressing the three Dhanasar prongs fail for the same reason as EB-1A letters. Each letter should address at least one prong explicitly, with specific knowledge of the proposed endeavor and specific claims about the petitioner's track record relative to it.

4. Inadequate Prong 3 argument

Prong 3 requires you to show that waiving the job offer and labor certification requirements benefits the United States. It is not automatically satisfied by having strong Prongs 1 and 2. Denials that cite Prong 3 as deficient are due to the petition focusing on Prong 1 and 2, rather than independently addressing why the national interest is better served by a self-petition than by the employer-sponsorship process.

What Can You Do After an I-140 Denial? 

If you receive a denial, you have four options. Which one you pursue depends on your unique situation and whether it applies. Here’s a side-by-side comparison;

What to do While You Wait? 

If your nonimmigrant status is valid and independently maintained, you can continue working and living in the United States while an appeal or motion is pending. 

The appeal does not independently accelerate or degrade your status. If your H-1B is approaching the six-year cap and your I-140 (or PERM) has been pending for 365+ days, you may be eligible for one-year extensions under AC21. Use the waiting period to track the USCIS Visa Bulletin monthly if priority dates are relevant to your category.

I-140 Appeal Success Rates in 2026

Most I-140 appeals to the AAO are not sustained. USCIS publishes official AAO decision data,  including sustain, dismiss, and remand counts by form type and fiscal year.

According to USCIS, eligible applicants with strong petitions receive approval when their petitions are initially reviewed. Those with appealed cases almost always have evidentiary challenges, which have lower success rates compared to what a well-prepared appeal can achieve.

When you file a Form I-290B, the office that denied the petition conducts an initial field review within approximately 45 days before the case reaches the AAO. During that review, the denying office may reverse its own decision and approve the petition.

USCIS notes that "a significant number of appeals are favorably resolved during initial field review." Submitting a complete, well-argued brief concurrently with the I-290B, rather than waiting the optional 30 additional days, gives the field office the best opportunity to act favorably at that stage.

Here’s what drives success on the different response options; 

• AAO appeal: You must identify any inaccurate conclusion of law or statement of fact that resulted in the denial. Generic statements that the decision was wrong may result in dismissal. 
• Motion to reconsider: You must identify a documented error. This could be whether the officer cited the wrong regulatory standard, applied a threshold not supported by the policy manual, or disregarded a type of evidence that USCIS guidance explicitly treats as qualifying. Present a policy manual update, a relevant AAO precedent decision, or a mischaracterization of the regulatory criteria.
• Motion to reopen: You must present new, documented evidence that is relevant to the grounds of denial. This means evidence that was not previously submitted, and addresses the specific grounds of the denial.

What Happens to Your Visa Status During an Appeal?

A pending I-140 appeal does not automatically protect your nonimmigrant status, and it does not mean you should depart the country. 

Your nonimmigrant status continues, or does not continue, based on the validity of your underlying visa category, different from any I-140 appeal. For example, if you're on an H-1B visa during an appeal, your visa status remains unchanged while the appeal is pending.

However, if your status expires before your appeal is resolved, you can apply for an extension of your status, change to another nonimmigrant category, or depart the United States and re-enter on a valid visa. The appeal does not grant an authorization of your stay. 

How to Decide Whether to Appeal or Refile

According to Beyond Border attorneys, here’s a four-factor framework to help you make the right choice; 

• Factor 1: Denial strength. If the officer applied the wrong legal standard, an appeal has a concrete basis. If the officer applied the correct standard and reached a defensible conclusion based on the submitted evidence, an appeal challenging the weight of the evidence is a harder argument to win. 
• Factor 2: Evidence availability. If new material evidence now exists that directly addresses the stated grounds for denial, a motion to reopen is faster and less expensive than a full AAO appeal. If no such evidence exists and the denial grounds were legally correct, refile after building the evidence.
• Factor 3: Timeline and status. In a retrogressed visa category, losing 18 months waiting for an appeal that is unlikely to succeed is worse than refiling and rebuilding. If your case has a strong appeal argument and your priority date is years ahead of the current cutoff anyway, the timeline may not matter. 
• Factor 4: Priority date. A sustained appeal reinstates the original priority date. A refile creates a new one. In backlogged categories, such as EB-2 for India or China, for example, a priority date difference of even 12 months can have significant consequences. It may be better to preserve your original priority date by pursuing an appeal without setting yourself back by refiling. 

Work With An EB-1A, EB-2 NIW Immigration Specialist

Getting an I-140 denial is a situation nobody wants to find themselves in. But if it happens, you want to make sure that you submit a stronger petition, whether for refiling or appeal. The best way to do this is to work with a specialist who can evaluate your profile honestly and map out a strong petition strategy. 

Beyond Border handles EB-1A and EB-2 NIW petitions for Founders, researchers, engineers, and senior professionals. We start with an honest read of where the case stands and guide you in building a strong case for your petition. We have processed over 4,000 cases with a 98% approval rate across the board and promise to file your petition within one month of receiving your documents. 

Book a free consultation today for an honest review of your profile.