RFEs, Denials, and What Comes Next: Lessons from a High-Profile O-1 Visa Journey

What do pink velour, USCIS and TikTok have in common? They are all part of Boy Throb’s ongoing immigration saga.  

Band member, Darshan Magdum, is still stranded in India, having petitioned for an O-1 visa to enable him to enter and perform in the U.S. with Boy Throb.    

Darshan’s case has sparked much interest, and more recently, concern - nowhere more than at McEntee Law Group. We recently learned that Darshan received a Request for Evidence (RFE), and his case may even have been denied.  

We don’t have details of Darshan’s RFE, but based on Boy Throb’s posts, it seems that his petition and supporting evidence failed to convince USCIS that Boy Throb is a real band and/or that he is an individual with extraordinary ability.  

As RFEs and denials are becoming more common under the current Administration, we thought it would be timely to talk about:

• what it means to receive an RFE;

• how to handle an RFE effectively; and  

• what options exist if a petition is ultimately denied.

To guide you through this topic, watch the videos by our own devoted Throbbers, Jamie Bailey (Senior Immigration Attorney) and Hilary Hatton (Senior Law Clerk) below.  

What’s Required for an O-1 Visa?

A petition for an O-1 beneficiary, like Darshan, must demonstrate that the beneficiary possesses extraordinary ability in the arts or entertainment. In her video, Hilary talks us through a common misconception about O-1s - that successful petitioners need millions of followers or viral fame to qualify.

In reality, it is about showing your:

• Sustained body of work;

• Recognition in your field; and

• Documented impact.

You need a well-structured and strategized petition, which clearly connects your achievements, backed by solid evidence, to the O-1 legal standard.  

RFEs v Denials  

The first thing to say is that an RFE is not a denial.

Jamie explains that a USCIS officer issues a RFE if they need more information before deciding whether to approve or deny a visa petition. The petitioner can still save their case but must take prompt action.

By contrast, a denial means that USCIS has determined---correctly or not---that the case does not meet the required legal standard.

RFE Diagnosis

As Jamie notes, RFEs must be analyzed line-by-line to understand exactly what USCIS is questioning. Most fall into one (or more) of the following categories:

• Missing or incomplete documentation;  

• Lack of sufficient explanation or context;  

• USCIS’s misinterpretation of legal standards; or  

• A perceived failure to meet eligibility requirements.  

It is not uncommon for RFEs to contain errors or even to be completely legally insufficient, but if a petitioner does not respond, it can be denied for abandonment. RFEs can often be addressed in a response which provides further clarification, that addresses any USCIS errors, and / or providing additional evidence. If this is not the case, a petitioner may choose to refile.

Response: striking the right chord

An RFE response should be thoroughly organized and as easy as possible for the adjudicating officer to review. At a minimum, it should:

• Address every issue raised in a neutral tone, nothing should be ignored;  

• Mirror USCIS’s language and structure and provide relevant legal citations for easy cross-referencing;  

• Provide additional relevant proof where gaps exist e.g. in an O-1 case this might include further evidence of media coverage or performance metrics;  

• Consistently reference details (names, dates etc) across all documents; and

• “Join the dots” between your work and the required legal standard.

Jamie emphasizes that USCIS evaluates your eligibility at the time of the original filing. This means that any evidence submitted with an RFE response, that was created after that date, will generally carry less weight.

Jamie also underscores the 87-day response window and highlights the importance of meeting this strict deadline.  

Refiling After an RFE or Denial: When Starting Fresh Is Better

If you choose to refile after an RFE or denial, the first step will be to identify where the case fell down. You should always get advice from an experienced immigration attorney on whether to:

• Refile in the same visa category with a materially stronger case; or  

• Switch to a different visa category entirely.  

Either way, a new petition should be treated as a completely fresh filing, meaning:

• New forms completed from scratch;  

• A revised legal argument in the cover letter;  

• Explicit acknowledgment of prior weaknesses or denial reasons; and  

• Clearly organized, labeled and upgraded supporting evidence.

The emphasis should always be on quality over quantity- the case should be stronger and more persuasive, not just more voluminous.

Final Notes

As Hilary clarifies, O-1 success is about demonstrating that your work meets the required legal standard.  

Failure to do so, results in RFEs and denials. While neither is welcome, Jamie explains that the following principles should be followed in an RFE response or case refile:

• Understand and respond thoroughly to every concern raised by USCIS;  

• Ensure consistency across all materials; and  

• Present a clear, organized, and legally grounded argument.  

If you are navigating an RFE or considering a refiling after a denial, it is important to assess your options carefully and build the strongest possible record moving forward.

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