If you have been reading our article on the EB-2 NIW and stacked I-539 scheme and recognized your own situation, the most important thing you can do right now — before USCIS issues a decision on any pending application — is withdraw those applications in writing.
This is not a complicated process. But the timing is everything. A pending application can be withdrawn. A decided application cannot. Once USCIS issues a denial, the record is set, and in the current enforcement environment, that denial can trigger a referral to immigration court.
Your Absolute Right to Withdraw
Under 8 CFR 103.2(b)(6), any applicant may withdraw a pending immigration application at any time before a decision is issued. The withdrawal must be in writing. That is the entire requirement — there is no waiting period, no approval process, no requirement to state a reason.
The withdrawal does not just pause the application — it ends USCIS’s authority over it entirely. Once a written withdrawal is received and no decision has yet issued, the application is no longer pending. USCIS has no jurisdiction to adjudicate it. A withdrawal is not a denial. It creates no adverse record. It does not trigger a Notice to Appear or immigration court referral. For someone caught in the stacked I-539 scheme, this distinction is the difference between a clean exit and a removal proceeding.
How to Submit a Withdrawal
The withdrawal request must be in writing and must include enough information for USCIS to identify the specific application:
- Your full legal name
- Your date of birth
- The form type (e.g., Form I-539)
- The USCIS receipt number for that specific application
No reason for withdrawal is required. Send the written request to the same service center processing the application. Use a method that creates a record of delivery — certified mail with return receipt is the standard. If you have a USCIS online account associated with the filing, some applicants also submit through the portal, but obtain proof of submission regardless of method.
If you have multiple applications pending — as in the stacked I-539 scenario — each application requires a separate withdrawal letter with its own receipt number. They can be sent together in the same mailing, but each must be individually identified.
What If USCIS Issues a Decision After Receiving Your Withdrawal?
This happens. We have seen USCIS issue denial decisions on applications where withdrawal letters had already been received. This is a procedural error — a significant one.
A decision issued after a valid written withdrawal is, legally speaking, a nullity. USCIS adjudicated something it no longer had authority to adjudicate. The appropriate remedy is a motion to reconsider or reopen, arguing that the decision should be vacated because the application had already been withdrawn under 8 CFR 103.2(b)(6). Under 8 CFR 103.5(a)(7), no filing fee is owed for a motion that is compelled by a USCIS error. You are not asking for a do-over — you are asking USCIS to correct its own mistake.
If you find yourself in this position, you need an attorney. The motions are not legally complicated, but they require correct citation, exhibit preparation, and tracking of the 33-day window from the decision date within which a standard motion must be filed.
Your Situation Depends on Where You Are
If You Are in the United States and Out of Status
Act immediately. Under the February 2025 USCIS enforcement policy, a denied benefit application for an applicant with no lawful status can result in a Notice to Appear (NTA) — the document that initiates removal proceedings in immigration court. More than 26,700 NTAs were issued in the months following that policy memo.
Every pending I-539 application that gets denied rather than withdrawn is a potential NTA. The withdrawal right under 8 CFR 103.2(b)(6) is the clean exit: a withdrawn application cannot be denied, and a withdrawal does not trigger enforcement action. Get the withdrawal letters out before any decisions issue.
After the withdrawals are submitted, consult a licensed immigration attorney about your realistic options. There may be paths forward — but they require an honest assessment of your specific facts, not a consulting firm’s sales pitch. See our article on untimely extensions and changes of nonimmigrant status for a frank explanation of what it actually takes to get an out-of-status filing approved.
If You Are Outside the United States — for Example, in Canada
Your situation is different, and in some ways more manageable. You are not at immediate risk of removal. The NTA concern that makes this so urgent for people in the United States does not apply to you in the same way.
If the consulting firm also filed an EB-2 NIW I-140 petition on your behalf as part of the scheme, you have a choice to make about that filing. The I-140 is a separate track from the I-539 extensions. It is independently adjudicated, and there is no immediate harm in letting USCIS process it to a decision.
Here is what will happen: USCIS will issue a Request for Evidence on the I-140, almost certainly focused on the Dhanasar three-prong test — whether your proposed endeavor has national importance, whether you are well-positioned to advance it, and whether waiving the employer requirement serves the national interest. For most skilled tradespeople and small business owners sold on this scheme, that RFE will expose precisely where the petition falls short. When USCIS ultimately denies the I-140, that denial letter is documentation of exactly what you were promised and why it was not achievable.
Take that denial to a licensed immigration attorney for an honest second opinion. Ask them to walk through what the Dhanasar analysis actually required, where the petition failed, and whether there is any legitimate path to U.S. immigration status available to you. You will be in a much better position to evaluate your options — and the quality of the advice you received — with that documentation in hand.
In the meantime, do not pay for any additional filings, do not engage the consulting firm for further services, and do not let them file anything else on your behalf. The scheme is over. The question now is what comes next.
If you are withdrawing because your former firm has been accused of fraud, read our former-client playbook for accused-firm cases first — withdrawal is permanent, and it is not always the right move.
How We Can Help
We handle withdrawal letters, motions to reconsider following decisions issued after withdrawal, and the honest status analysis that should have happened before any filings were made. We also handle removal defense for clients who are already in immigration court proceedings as a result of these denials.
If you are outside the United States and waiting for an I-140 decision, we can review the petition and give you a frank assessment of where it stands under the Dhanasar standard before USCIS issues its RFE or denial.
To discuss your situation, contact us for a consultation.
