Last Updated on December 6, 2024 by Linda Lee
Overcoming H-1B Visa Denials Through Federal Litigation
At ILOLA, we understand how frustrating and stressful an H-1B visa denial can be. Whether it’s an initial petition, H-1B transfer, or extension, a denial can disrupt plans, careers, and lives. However, denial doesn’t have to mean the end of the road. Our attorneys specialize in assisting clients to challenge and overturn arbitrary or erroneous denials through a variety of legal strategies, including federal litigation.
Understanding H-1B Visa Denials
The United States Citizenship and Immigration Services (USCIS) can deny H-1B visa petitions for various reasons, such as insufficient evidence, failure to meet specialty occupation criteria, or procedural errors. Unfortunately, many of these denials are arbitrary or capricious, leaving applicants with limited options.
Our team leverages its expertise to evaluate the specifics of your case and identify the most effective path forward. In over 90% of federal litigation cases we file, the government reverses its decision within 2-4 months.
Options for Challenging an H-1B Denial
When faced with an H-1B denial, there are several pathways to challenge the decision. While each option has its merits, federal litigation often provides the most effective, efficient, and fair resolution. Below is a comparison of the primary options, emphasizing why federal lawsuits frequently stand out as the best course of action.
Motion to Reconsider
A motion to reconsider asks the same USCIS officer who denied your H-1B petition to review their decision again. While theoretically possible, this approach has significant challenges:
- Low Success Rate: It’s difficult to persuade an officer to admit an error, particularly if the initial denial was based on their interpretation of law or facts.
- Requirement for New Arguments: Success usually hinges on presenting new legal authority or arguments that were not previously submitted, which can be difficult to produce after the fact.
While this option is less costly and may be appropriate in rare cases, it is unlikely to succeed unless there is a clear legal misstep or overlooked evidence.
Motion to Reopen
A motion to reopen allows petitioners to provide new evidence to address the reasons for the denial. This option can be effective in cases where missing documentation or information caused the denial. However, there are significant limitations:
- Restrictive Evidence Rules: Some USCIS officers insist that new evidence must not have been available at the time the original petition was filed. We have strong arguments why this is not correct, and in fact have never had a motion denied on this ground, but we nevertheless are aware of other attorneys’ cases which have been denied on this ground.
- Potential Delays: USCIS processing times for motions to reopen can be lengthy, leaving applicants in limbo for many months or longer.
This option may be suitable when substantial new evidence exists, but it carries risks of delay and uncertain outcomes.
Appeal to the Administrative Appeals Office (AAO)
Filing an appeal with the AAO or the Board of Immigration Appeals (BIA) is increasingly considered a less favorable option for several reasons:
- Strong Bias Toward Denial Affirmation: The AAO very often upholds USCIS denials, making it difficult to achieve a reversal.
- New Reasons for Denial: The AAO frequently introduces additional denial grounds not addressed in the original decision, which complicates future federal court reviews.
- Extended Timelines: Appeals to the AAO can take a year or more to resolve, creating significant delays for petitioners.
Although the AAO allows for a 30-day extension to prepare a brief or submit new evidence, the overall inefficiency and low likelihood of success make this a less desirable path.
Filing a New Petition
In many cases, filing a new H-1B petition may offer a straightforward alternative:
- Flexibility: Unlike motions, there is no requirement for new evidence to have been previously unavailable, and the petition is reviewed by a different USCIS officer.
- Extended Deadlines: Petitioners are not bound by the tight 33-day filing window for appeals or motions.
- Preservation of Status: If filed before the beneficiary’s current status expires, the new petition allows lawful presence in the U.S. while awaiting a decision.
Limitations: Filing a new petition may not be effective if the original denial grounds would apply to the new filing or if the beneficiary has already lost their status, although sometimes a late petition can be filed, or if the new petition is approved, the beneficiary might then get back into status by applying for a visa at a consulate. Finally, if this is an H-1B “cap” cases where the beneficiary qualified by winning the H-1B “lottery” and so the petition had to be filed by a certain date, which has now expired, the petition cannot be filed again, unless the beneficiary is chosen in the next H-1B lottery.
Federal Lawsuit: The Best Option for Many Denials
Federal litigation often provides the most effective and efficient resolution for H-1B denials. By filing a lawsuit under the Administrative Procedure Act (APA), petitioners can challenge USCIS’s decision in federal court, where the case is reviewed impartially by a judge.
Key Advantages:
- Fairer Tribunal: Federal courts are not bound by USCIS’s internal interpretations and will limit their review to the original denial grounds, preventing the introduction of new issues.
- Faster Resolution: Many cases are favorably settled by government attorneys before they reach trial, often within 2-4 months—much faster than an AAO appeal or USCIS motion.
- Higher Success Rates: With strong evidence and legal arguments, federal litigation has a proven track record of overturning wrongful denials.
If your H-1B denial was arbitrary or based on an incorrect application of the law, federal litigation is a compelling option that ensures a fair review and a timely resolution.
What Happens After Filing a Federal Lawsuit?
- Service: Once the summons are sealed by the clerk then they must all be served by certified mail together with a copy of the complaint as filed. A priority should be on serving the U.S. Attorney’s office because it will normally be at least initially representing the agency in this matter and may be the only persons in the government who will actually notice that they have been served.
- Dealing with government counsel: Once the defendants are served, they have 60 days to file an answer. As this deadline approaches, the plaintiff’s counsel can expect a call from an Assistant US Attorney requesting additional time to file an answer.
- Scheduling: At or around the time of filing the court often issues an order requiring the parties to consult regarding the scheduling of discovery and dispositive motions to be placed in an order.
- Briefing: Almost all federal lawsuits are decided on motions for summary judgment unless of course the government successfully moves to dismiss first. The contents of the brief are dictated by local rules, but normally require a table of contents and authorities, a statement of questions presented, the standard of review, statement of facts, summary of argument, argument and conclusion. All arguments must be based upon the administrative record, except under some circumstances, one may be able to ask the court to take judicial notice of certain facts that are not subject to reasonable dispute.
- Decision: Different courts and judges follow different procedures once any dispositive motion has been briefed. Many judges will simply take the matter under advisement and issue a written decision at their leisure. Others will schedule oral arguments and may announce their decision at the conclusion of the hearing.
- Motions for Rehearing and Appeal: If the decision is favorable to the plaintiff it does not automatically follow that the petition will be immediately approved. The government has up to 60 days to file (with the district court clerk) an appeal to the applicable circuit court of appeals, however, it appears unusual for the government to actually take that appeal. Decisions by U.S. district judges are not binding upon the agency in other cases, but published circuit court decisions are binding on it throughout that circuit. Therefore the government has little to gain and much to lose by appealing and so seldom does.
- Remand: The judge’s decision in the plaintiff’s favor normally means simply that the denial has been vacated. Theoretically, the agency could at that point re-adjudicate the petition and simply deny it again on another ground. However, this seldom happens. Normally when one wins before the court one can expect a notice of approval to arrive shortly in the mail.
- Equal Access of Justice Act (EAJA) fees: In many cases, a successful plaintiff will be entitled to attorney fees under the Equal Access to Justice Act. Basically, it must be shown that the client was the prevailing party in the lawsuit, the government’s position is the lawsuit was not substantially justified and there are no special circumstances for not awarding fees.
- Bonus! Speeding up a settlement by requesting a preliminary injunction. If the H-1B denial puts the plaintiff out of status, he or she can ask for an immediate “preliminary injunction” putting them back into status (and often restoring their employment authorization) while the case is pending. Not only does the grant of such an injunction go along way towards relieving the plaintiff’s anxiety but, it forces the Assistant U.S. Attorney assigned to the case to look at it to responded to the injunction, it often brings about a settlement in a few weeks, rather months.
Why Choose ILOLA?
Proven Success Rate
Over 90% of our federal litigation cases result in favorable outcomes.
Expertise in Federal Litigation
Our attorneys specialize in APA lawsuits, ensuring your case is handled with precision.
Efficient Process
We prioritize quick and effective resolutions to minimize disruptions to your life and career.
How We Can Help
Our experienced attorneys are equipped to guide you through every step of the appeal process, from filing motions to litigating in federal court. We’ll prepare all necessary documents, including:
- Detailed complaints for federal lawsuits.
- Comprehensive legal briefs for motions or appeals.
- Summons and additional paperwork required by the court.
Once your case is filed, we work diligently to communicate with government counsel, negotiate settlements, and ensure your rights are upheld.
Don’t Let an H-1B Denial Stop You
An H-1B visa denial can feel like a dead end, but with the right legal support, it doesn’t have to be. At ILOLA, we are dedicated to fighting for your rights and securing the outcomes you deserve.
Schedule a Free Consultation Today!
Call us at (213) 375-4084 or complete our online form to speak with an experienced immigration attorney and explore your options. We handle cases nationwide.
H-1B Appeal Success Stories
The USCIS denied an H-1B petition because it claimed that the employer put the wrong occupation on the Labor Condition Application. In fact it was the correct one and the U.S. Attorney’s Office caused USCIS to issue an approval notice 2 days after we filed the lawsuit!
USCIS rejected 3 H-1B “cap” cases filed by the same employer because the petition start date was not October 1. Our lawsuit showed how such a start date was not required and USCIS settled the case by accepting these petitions for filing, which were then approved.
USCIS rejected an H-1B cap case as being filed beyond the deadline even though we showed this was due to ineffective assistance of counsel by the prior attorney. Shortly after the lawsuit was filed the USCIS agreed to accept the petition and promptly approved it.
Many cases in which the USCIS claimed that the job offered the beneficiary was not a “specialty occupation” (not a job which required a specialized degree), our complaint showed it was, and USCIS approved the cases a little more than 2 months after the lawsuits were file.
