It is well-known that the government has put the H-1B visa program under attack. The USCIS has been denying thousands of cases over frivolous issues which are not even part of the law, but rather pursuant to their warped interpretation of the law or regulations.
The way to try to win a case that has been denied is to take it to federal court by filing a lawsuit against USCIS and the Department of Homeland Security. Before doing so, however, you must make sure you have made a full and complete record. So, if there is any possible merit to any basis for the denial, I first recommend that the individual or company do a Motion to Reopen/Reconsider, and submit additional evidence to rebut every basis for the denial.
When you take case to court, you must have a full and complete record from before the USCIS. A federal judge is not normally going to consider any new evidence. So, once the rebuttal evidence is submitted to USCIS through a Motion, and the case is denied again, it is time for court (assuming there are now no valid grounds for denial; if they have new grounds, then do another motion).
A lawsuit in federal court will challenge the decision, typically, under the Administrative Procedure Act (APA) because the decision is arbitrary, caprices, or not in accordance with the law. This Houston immigration lawyer and Miami invigoration lawyer has filed many immigration lawsuits under the APA.
Often, the government simply responds by saying they will not fight the case, and will approve the H-1B. Other times, if they choose to fight, then ultimately a federal judge will decide if they were right to deny the case. The good thing is that most federal judges are not biased and do not have a vendetta like USCIS to attack the H-1B program. So, a fair adjudication is typically expected. Moreover, if a person wins the case, they may be able to recover attorney’s fees for bringing the case, pursuant to the Equal Access to Justice Act.
Many individuals who lose an H-1B case simply give up and leave the country. Or, they appeal, lose and then leave the country. However, a lawsuit is the next step, and the filing of lawsuit provides a real opportunity for justice and a fair consideration of the H-1B case.
For further information, this Houston immigration lawyer and Miami immigration lawyer may be reached at [email protected] or at 713-850-0066 or 305-701-4624.
