Best Options in Case of a Denial for P-1 or O-1 Visas
In the history of our law firm, Sherrod Sports Visas has successfully petitioned for hundreds of athletes in the P-1 category, especially in combat sports. We know more about P-1 visa petitions than the Adjudicating Officers at USCIS; and it is starting to really show. Unfortunately, in the past eight months, we are witnessing the worst and most inconsistent Adjudicating Officers we have ever come across at both the California and Vermont Service Centers.
Denials are going to happen in this climate regardless of the quality of the petition. We are working hard to find the best tools available to petitioners to combat wrongful denials and hold adjudicating officers accountable.
How to try to avoid wrongful denials in the first place?
All of our petitions are packed with USCIS internal notes and examples of how regulations should be interpreted. This is because many USCIS officers do not adjudicate a lot of P-1 and O-1 visa applications which leads to inconsistent results. One example is how USCIS rules on the itinerary portion of P-1 petitions for mixed martial arts and boxing.
For mixed martial arts petitions, we always include an itinerary that includes MMA bouts with UFC and the PFL, striking competitions, and grappling competitions. This is because, even if the mixed martial arts bouts are not taken favorably by the officer, the other competitions still make up an itinerary. In addition, we also had a case for a mixed martial artist that was denied because the athlete was not currently in the UFC. We appealed the case and won by explaining to the adjudicating officer that this was not necessary.
The full review of the case is available here: https://www.sherrodsportsvisas.com/it-is-indeed-a-moment-of-pride-to-report-that-we-were-able-to-get-approval-for-a-p1-visa-for-world
In short, we used USCIS internal notes to remind the Adjudicating Officer that no relationship between the athlete and the promoter of an event is required; when the petition is filed as an agent functioning as the employer. Under this structure, there is no requirement for permission to be granted by a promoter, such as the UFC, to sign off on the petition.
We have successfully petitioned for dozens of mixed martial arts petitions with this format and hundred of P-1 petitions in general.
Nonetheless, we now have denials that ignore internal guidance.
What are the next best steps when a visa is denied?
There are three realistic choices for approaching a denial, which can be done separately or all at the same time. A denied case can be appealed directly to USCIS, the case can be refiled, and finally a case can be litigated. Each method has its own benefits and timeline. In most circumstances, the best option is to refile and appeal the case at the same time.
Filing an Appeal for P-1 or O-1 Denial using form I-290(B) direct with Service Center
In this method a motion is filed directly with the service center. The I-290(B) motion has a $675 fee and there is no option for premium processing here. Most often the motion is filed with additional information and a 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. This method can take a VERY long time. For the purpose, we also recommend that a new case be filed in addition to the I-290(B)
Refiling the I-129 P-1 or O-1 Visa Petition
It is best practice to also refile a denied case because the I-290 appeals take a long time, the refiled petition often gets approved before the I-290B is adjudicated. In addition, clients can also 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.
Litigating a denial of O-1 or P-1 Petition
Thus far, there are not many cases at all that are federally litigated for P-1 and O-1 visas. Our law firm has had enough with USCIS. Our immediate goal is to be very aggressive with federal litigation now and 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. Filing a lawsuit, depending on Jurisdiction, can be the quickest path to reversing a denial. Most often, the federal attorney will negotiate to have the case reopened and approved rather than go to a trail.