HOW TO APPEAL AN H1B DENIAL: FEDERAL LITIGATION AND JUDICIAL REVIEW
How to overturn arbitrary H1B visa extension or transfer denial by filing a Federal Lawsuit.
Federal Court Litigation may be an effective way of resolving government’s H1B denials and errors. In well over 90% of the cases we file, the government reverses itself within 2-4 months of the case being filed.
There is a widespread perception among immigration attorneys today that never before has the government become so unreasonable in its adjudication of requests for immigration benefits. With reversals at the Administrative Appeals Office (AAO) becoming fewer and rare, more attorneys seem to be seeking relief in federal court than ever before and achieving ever greater successes when doing so. Nevertheless, most attorneys see bringing an action in federal court as an exotic or even overwhelming proposition.
Here, at the Immigration Law Office of Los Angeles, attorney Michael Piston specializes in Federal litigation, and can help you overcome the erroneous decision made on your H1b application by filing a Federal Lawsuit and get results by forcing the government to adjudicate cases that have been unlawfully delayed or overturn H1B extensions and H1B transfer arbitrary denials.
Federal Court Litigation may be an effective way of resolving government’s H-1b denials and errors. In well over 90% of the cases we file, the government reverses itself within 2-4 months of the case being filed.
There In the following article we will explain how the process of filing a lawsuit to overcome the decision made on your H1B application works. We will discuss about:
- What to consider when filing a lawsuit in Federal Court to overcome an H-1b denial?
- What documents will our office prepare for you?
- What happens after filing the lawsuit?
- What alternatives do you have to appeal your denial?
What to consider when filing a lawsuit in federal court in order to overturn your denied H-1b?
- Does a federal court have jurisdiction over this matter?
Given that the USCIS and the Department of Justice (DOJ) are active everywhere in the U.S., personal jurisdiction is never an issue in Administrative Procedure Appeal (APA) lawsuits, but government challenges to subject matter jurisdiction are quite common.
There are 2 forms of standing which are a prerequisite to federal litigation:
a. Constitutional Standing:
“Constitutional standing” implements the requirement of the constitution that the federal courts’ authority be limited to “cases” and “controversies and has as its purpose to ensure that courts do not render advisory opinions rather than resolve genuine controversies between adverse parties.
b. Prudential standing:
For a person to have prudential standing to bring a lawsuit under the APA, “the interest he asserts must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he says was violated.
a. Denial of the visa petition is generally final.
b. Visa petition denials are final despite failing to take an available administrative appeal.
c. A pending motion to reopen or reconsider, or administrative appeal, does render a denial non-final.
Of course doubtlessly the most important of all considerations in filing a lawsuit in federal court is the likelihood of success on the merits.
Once a decision is made to proceed with the suit, two more procedural issues must be decided – where to file, and who to name as defendants.
a. Which venue is possible?
Is usually going to be the judicial district in which the plaintiffs reside, the judicial district containing the USCIS office that denied the petition, and the U.S. District Court for the District of Columbia since the USCIS resides in D.C. In an employment-based petition, if the visa petitioner is a corporation, then the lawsuit may be filed in the state where the corporation has its primary place of business.
b. Which venue is optimal?
Naturally, in determining which of the available districts to bring suit, one will need to take a look at how the circuits with jurisdiction over the place of filing have ruled on potential issues in one’s case.
Finally, a lawsuit cannot be filed without naming defendants. Given that this is a suit to overturn an agency decision, this certainly requires that the agency be named as a defendant. But who else? Many attorneys, apparently intent on naming as many defendants as possible, will sue the Department of Homeland Security, the heads of that agency and the USCIS, the officer who made the decision and sometimes the Attorney General. While there may not be any harm in naming additional multiple defendants, neither is there really any advantage. The only conceivable argument for naming defendants other than the USCIS might be to make it possible to give the plaintiff a wider choice of venues. However, almost all the additional defendants commonly named reside in the District of Columbia, which already exists as a venue.
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What papers and immigration documents will we need to prepare?
Once all the preliminary issues have been resolved, in order to file an APA lawsuit, the attorney has to prepare the complaint. Generally speaking, there are 2 ways of doing it:
a. File a complaint which includes the minimum needed, like name and identification of the parties, the nature of the suit, the basis for jurisdiction, description of the decision which one is seeking review of, and the allegation that this decision should be held unlawful and set aside because it is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.
Such a minimalist filing allows getting a lawsuit filed quickly and with the least expense to the client. It’s a more conservative strategy because it doesn’t commit the plaintiff to any particular theory until the government files the administrative record.
b. File a complaint that is as detailed as would be a motion for summary judgment, and is supported by legal authority and exhibits containing the relevant documents.
The advantage in this is that it communicates the strength of the plaintiff’s claim at the earliest possible date not only to the judge but just as important to the Assistant U.S. Attorney assigned to defend the matter. The stronger the plaintiff’s case seems to the Assistant U.S. Attorney, the greater the chances are he will recommend to the agency that it simply gives the plaintiff what he wants.
Once the complaint is prepared one should carefully review the local rules of the federal district court in which the complaint will be filed to see what other papers must be submitted with it and how. The vast majority of U.S. district courts now require that lawsuits be filed online, although some still direct that the case be initiated by a paper filing, after which all filings are online. Normally one must file with the court summons for each defendant plus the Attorney General, the civil process clerk of the US Attorney for the judicial district in which the case is being filed, and the officer who decided the case. Finally, one must file a civil cover sheet, and depending upon the district, may also have to file a document indicating what other parties might have an interest in this matter and/or a notice of appearance, documents which should all appear, when required, on the court’s website.
What happens after filing the lawsuit?
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.
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.
All APA actions 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.
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
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 writer is not aware of any APA cases in which this occurred. 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.
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What alternatives do you have to appeal your H-1b denial?
Motion to reconsider:
A motion to reconsider is basically trying to persuade the officer who just denied your h1b petition that he was wrong. Given the general human tendency not to wish to admit error, this will seldom be a successful course of action unless you have some new argument or authority to provide which was not presented to the agency before.
Motion to reopen:
Probably the most common response to an H1b that was denied is simply to provide the USCIS with the evidence they claimed your petition was lacking. This is normally a sound strategy, where it is possible. However, bear in mind that some USCIS officers have stated that evidence filed in support of a motion to reopen must not have been available at the time the petition was filed.
Appeal to the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA):
Appeals to the AAO are increasingly falling out of favor as in the vast majority of cases it is futile. First, the AAO appears to be strongly oriented towards affirming decisions. Further, its examiners put a lot of time and thought into their denials which makes them far more difficult to overcome if you subsequently seek review in federal court. What is more, the AAO will frequently affirm the denial of a petition for additional reasons not even mentioned in the initial denial. Often it is on an issue which could have easily been overcome in an RFE, but since the AAO seldom issues RFEs itself, presenting additional evidence to overcome the denial requires the filing of a motion to reopen with the AAO. The AAO normally decides such motions in the same year or more time frame it takes considering the appeal itself.
The only known redeeming quality of an AAO appeal is that one may request an additional 30 days after filing to prepare a brief or even to submit new evidence.
This is often the best solution since it overcomes most of the disadvantages associated with the already mentioned solutions. Unlike a motion to reconsider, it isn’t automatically sent to the same officer that just denied the prior petition, and unlike a motion to reopen there is no requirement that the new evidence has been previously unavailable. Nor does one have to rush to put a new filing together within the 33-day deadline for an appeal or motion. Finally, if the new nonimmigrant petition is filed before the beneficiary’s prior status expires, he will be able to lawfully remain in the U.S. until a decision is made on the new petition and application for extension of stay or change of status.
Unfortunately, a new petition is probably not going to help if the reason for the previous denial will also be applicable to a new petition, or, in case of a nonimmigrant petition, the beneficiary has already lost his status.
A federal lawsuit will often be a more attractive than an appeal not only because a federal court is, a far fairer tribunal than the AAO, and one which will limit itself only to the initial grounds for denial, and not add new ones, but also because, as discussed below, most strong cases are favorably settled well before they go to the judge, often in as little as 2-4 months, far quicker than even a successful AAO appeal. If your H1B application was wrongfully denied, this might be the best option for you.
Hopefully, the foregoing has explained how to bring actions under the Administrative Procedure Act.
Doing so is not particularly difficult as long as one pays careful attention to the local rules of the judicial district in which one is filing, is aware of the narrow standard of review and understands that one is likely to be successful only where the agency’s decision is virtually beyond reasonable defense. Fortunately, or perhaps unfortunately, there are all too many USCIS and BIA visa petition decisions meeting this description, and a lawsuit in federal court often will be the most effective way and timely way of resolving them in the client’s favor.
If your H1b application was wrongfully denied and you wish to overturn this decision, please give us a call at (213) 375-4084 for a consultation with the attorney.