The denial rate of H-1B petitions has dramatically increased over the past few years. This number is only increasing because the USCIS has provided several reasons to deny H-1B petitions.
These denials usually stem from claims that the employer failed to show the position qualifies as a specialty occupation based on the specialty occupation criteria, failed to pay the required wage, or impermissibly assigned employees to third-party worksites.
So, it is not enough to show you are one of the many computer programmers, you must ensure that the vast majority see that as a specialty occupation. You are also expected to have a bachelor’s degree as the normal minimum requirement which aligns with the government’s position on specialty occupations.
With the USCIS’s recent approach, many H-1B petitioners fear a preordained denial regardless of how well they respond to requests for evidence (RFEs) or appeal their denial to the USCIS Administrative Appeals Office (AAO). One of the challenges virtually faced by many is knowing how to appeal the decision of the USCIS from a proffered position without being a victim of one of the many arbitrary denials.
However, since the denial increased, more H-1B petitioners have challenged the basis of H-1B denials by filing complaints in federal court. Many have succeeded in getting their H-1B denials reversed, while some still had theirs denied.
This article explains the litigation process and provides strategies for immigration attorneys contemplating litigation to challenge an H-1B denial in a federal court.
Challenging H-1B Denials With Federal Court Litigation: Trends and Strategies
There is a popular opinion among most immigration attorneys that the government has become so unreasonable in evaluating requests for immigration benefits. The truth is, there are statistics to back their claim.
With denial reversals at the Administrative Appeals Office (AAO) becoming fewer, attorneys have to develop different strategies to challenge H-1B denials in federal court. Still, many attorneys see bringing H1B denials to court as an overwhelming proposition. However, monitoring trends can be a lesson in going about an appeal.
With that said, here are some trends and strategies to challenge H-1B denials:
Most plaintiffs didn’t file an administrative appeal before suing in federal court. They also received an RFE from USCIS before their H-1B petition denial.
Often the most common complaints during the process followed this structure:
- Exhaustion of remedies
- Legal background
- Factual allegations
- Cause of action
- Request for relief
H-1B denials of most cases are based on an alleged failure to establish that the position was a “specialty occupation.” Grounds for denial in other cases included an alleged failure to meet the minimum wage requirement, being employed at a third-party worksite, employer-employee relationship, and failure to maintain F-1 status before the H-1B petition.
In even fewer cases, plaintiffs said that the USCIS failed to take action on a timely motion to reopen. They were also said to unlawfully approve the H-1B petition for a shorter duration than warranted and didn’t take action after the AAO’s reversal of the H-1B denial.
Selected Court Decisions
Out of fifty-two cases used in the analysis, twenty-three closed with a voluntary dismissal by plaintiffs. The attorneys involved in these cases claimed the USCIS reopened them in response to the lawsuit. Then afterward, they issued a second RFE before reversing its denial and approving the H-1B petition.
In ten cases, the plaintiff filed a motion for summary judgment, of which two were granted and three were denied.
Decisions for H-1B Plaintiffs
In decisions for H-1B plaintiffs, the court held that USCIS abused its discretion by impermissibly narrowing the statute’s plain language. This was done by requiring a single specifically tailored and titled degree without giving other closely related fields leeway.
In summary, agency action cannot survive judicial review where the agency fails to explain its action satisfactorily. This may consist of a rational connection between the facts found and the choice made. Under this trend, the court did not agree with USCIS’s interpretation that a specialty occupation requires an occupation-specific degree.
The following are some key lessons from these trends, acting as strategic guidance for attorneys with clients experiencing H-1B denials.
The AAO generally upholds the USCIS’s denial and may even place a stronger denial decision than the initial one. Hence, the best strategy is to go straight to the federal court.
- It is better to file a complaint in the federal district court
Alleging that USCIS was arbitrary and denying the H-1B petition and filing a complaint is the preemptive strategy. The lawsuit may lead to a reopening that causes an H-1B approval if it is done in line with the provisions of the administrative procedure act.
Even if the case proceeds, federal court judges are often more willing to reverse USCIS’s conclusion than an AAO adjudicator.
For filing a motion for summary judgment, like other federal court cases brought, attorneys should address all challenges in the motion. The court will likely agree that United States Citizenship and Immigration Services was not arbitrary in discovering that the plaintiff failed to prove some criteria.
This will be because the plaintiff did not challenge those issues in its motion for summary judgment.
Lastly, always include strong evidence when raising the issues surrounding your denial because it is a federal lawsuit that will be initiated in federal courts and not district courts; your evidence should be backed by the positions of a good market research analyst. Any failure to be very convincing makes the court uphold the decision of USCIS and prevents reversal.
How to Appeal An H-1B Denial In the Federal District Court: Federal Litigation And Judicial Review?
To appeal an H-1B denial or go through the process of AAO appeal, you need to understand:
- The things to consider when filing a lawsuit in Federal Court to overcome an H-1B denial?
- What documents your attorney will prepare for you for the AAO appeal?
- What happens after filing the lawsuit?
- The alternative you have to appeal your denial showing that the USCIS erroneously determined your petition
Things to Consider During the Process of Filing a Lawsuit In Federal Court
To overturn your denied H-1B, you need to consider some important factors before and during the lawsuit process, and some of them include:
- If a federal court has jurisdiction over the matter
- The constitutional or prudential standing, and any necessary regulatory definition
- The defendants
Documents to Prepare for the Lawsuit In the USCIS Administrative Appeals Office
After all the preliminary preparations have been made to file an APA lawsuit, the attorney must prepare the complaint document. Once the complaint is prepared, the attorney should carefully review the local rules of the federal district court where the complaint will be filed. This will help reveal what other documents must be submitted with it and how.
New Contact Form Submission Online
With the new contact form submission provided, you can submit your name, email address, and phone number with a brief description of your legal issue to get assistance virtually. However, you have to go to the immigration site and submit your inquiry.
Fearlessly Challenging H-1B Visa Denials Through Litigation
Fearlessly challenging H-1B visa denial through federal litigation is the only way to combat the increasing rate of denials. Since the impact of President Trump’s Executive order on the H-1B program, the system has not fully revised its level of acceptance.
After President Trump issued the “Buy American and Hire American” order, the trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year 2019 H-1B Cap filing season has been to rely on the Department of Labor (DOL). The USCIS then determines denials through the OOH entry.
The DOL’s Occupational Outlook Handbook (OOH) was used to arbitrarily deny H-1B visa petitions for Information Technology (I.T.) positions or computer programmer occupations such as computer systems analysts.
With recent developments and federal litigation, this trend has become less prevalent. However, this wouldn’t be possible without fearlessly challenging H-1B visa denials.
How to Appeal H1B Denial, Refile, or Initiate a Court Case When MTR is Pending?
If you are already in the U.S. on legal status, your employer can file a new I-129 petition on your behalf, provided the rejection issues can be rectified. However, if the issues are not easily corrected, you can extend your current status or change to another status.
Your employer must also file another I-129 petition asking for either a change to a new status or the extension of your current status.
If the filling date or filing period falls after the total petitions for the fiscal year are exhausted, you would have to wait for the next year.
Federal Appeals Court Solidifies Straightforward View Of H-1B Specialty Occupation Definition
A federal appeals court verified a clear interpretation of the specialty occupation definition for H1B visas after the court found out certain positions. This has paved the way for different industries to seek these visas. At the same time, the 9th Circuit Court of Appeals’ December 16 ruling gave employers an additional weapon in their arsenal when challenging denied H-1B applications.
The Lawsuit Challenging Denial of H-1B Visas for Market Analysts
In a recent win for American employers, the USCIS settled a class-action lawsuit. The denials were based on the Department of Labor’s Occupational Outlook Handbook entry (OOH entry) for market research analysts. The USCIS verdict relied on the OOH statement that stipulates market research analyst positions do not regularly need a minimum of a bachelor’s degree to qualify for the job. However, their arguments weren’t valid.
With the settlement, the USCIS issued guidance clarifying that the OOH description and labor statistics does demonstrate the role as a specific specialty occupation since it requires a bachelor’s degree, thus, validating the educational requirements effectively raised.
Hire Herman Legal Group Today!
Not up to six percent of the many cases challenging H1B denials succeed because it is a technical aspect of the law, and you need someone who understands this law and the workings of the USCIS.
If you are one of the twenty-four percent of individuals taking up specialty occupations like computer programmer occupation or you belong to the generation tech group, the chances are that you may have a challenge appealing H1B denials. However, with over 26 years experience in immigration matters, we can help you handle the technicalities of the law.
If you need help with any area of immigration law, don’t hesitate to schedule a consultation with Herman Legal Group by calling +1-216-696-6170. We can discuss with you in our office or via any comfortable video conferencing platform. If you want to schedule a direct consultation with Richard Herman himself, who is the best in immigration law, fill this online form.
USCIS sometimes abuse their visa rights, and, unfortunately, the only way for them to be fair in the law is to engage in litigation. However, in time, we continue to be optimistic that their decisions will be revised with the adoption of fairer regulations.