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H-1B Denial


What To Consider When Filing A Lawsuit In Federal Court To Overturn Your H-1B Denial?

Given that USCIS and the Department of Justice (DOJ) are active everywhere in the United States, personal jurisdiction is never an issue in Administrative Procedure Appeal (APA) lawsuits. However, subject matter jurisdiction challenges by the government are quite common.

There are two prerequisite types of standing for federal litigation:

 a. Constitutional Standing:

 “Constitutional standing” implements the constitutional requirement that the federal court’s authority is limited to “cases” and “controversies” and aims to prevent courts from rendering advisory opinions rather than resolving genuine disputes between adversaries.

 b. Prudential standing:

 To have prudential standing under the APA, a plaintiff’s asserted interest must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he claims were violated.

a. In most cases, the denial of a visa petition is final.

b. Denials of visa applications are final despite the possibility of an administrative appeal.

c. A denial is not final, while a pending motion to reopen or reconsider or administrative appeal is pending.

When filing a lawsuit in federal court, the likelihood of success on the merits is unquestionably the most crucial factor to consider.

After deciding to proceed with the lawsuit, two additional procedural questions must be addressed: where to file and who to name as defendants.

 a. Which venue is possible?

 Typically the judicial district in which the plaintiffs reside, the judicial district in which the USCIS office that denied the petition is located, and the U.S. District Court for the District of Columbia, as the USCIS is headquartered in D.C. If the visa petitioner is a corporation in an employment-based petition, the lawsuit may be filed in the state where the corporation has its principal place of business.

 b. Which location is optimal?

When deciding which of the available districts to file a lawsuit, one must consider how the circuits with jurisdiction over the place of the filing have ruled on potential case issues.

A lawsuit cannot be filed without identifying the defendants. Since this lawsuit seeks to overturn an agency’s decision, the agency must be named a defendant. Numerous attorneys, seemingly intent on naming as many defendants as possible, sue the Department of Homeland Security, the heads of that agency, and the USCIS, the officer. While there may be no disadvantage to naming additional defendants, there is also no real benefit. The only plausible argument for naming defendants other than USCIS would be to provide the plaintiff with a broader selection of venues. However, nearly all of the additional defendants, commonly called, reside in the District of Columbia, which is already a venue for this case.

What Papers And Immigration Documents Will We Need To Prepare FOR H-1B Denial?

After all preliminary issues have been resolved, the attorney must prepare the complaint in order to file an APA lawsuit. Generally speaking, there are two methods:

 a. File a complaint that contains the bare minimum, such as the parties’ names and identifiers, the nature of the suit, the basis for jurisdiction, a description of the decision being reviewed, and an allegation that the decision should be declared unlawful and set aside because it is arbitrary and capricious, an abuse of discretion, or otherwise not following the law.

 Such a minimal filing allows a lawsuit to be filed quickly and at minimal cost to the client. It is a more conservative strategy because the plaintiff is not required to commit to any particular theory until the government files the administrative record.

b. File a complaint as detailed as a motion for summary judgment, supported by legal authority and exhibits containing all pertinent documents.

 This has the advantage of communicating the strength of the plaintiff’s claim to the judge and, more importantly, the Assistant U.S. Attorney assigned to defend the case as soon as possible. The more compelling the plaintiff’s case appears to the Assistant U.S. Attorney, the greater the likelihood he will recommend that the agency grant the plaintiff’s request.

Once the complaint has been drafted, one should review the local rules of the federal district court where it will be filed to determine what other documents are required and how they must be submitted. The vast majority of U.S. district courts now mandate that lawsuits be filed online, although some still require a paper filing to initiate the case, after which all subsequent filings must be made online. Typically, one must file summonses for each defendant, the civil process clerk of the U.S. Attorney for the judicial district in which the case is being filed, and the officer who decides the case with the court. Lastly, one must file a civil cover sheet depending on the district. One may also be required to file a document indicating which other parties may be interested in this matter and a notice of appearance, all of which should appear on the court’s website when required.

What Happens After Filing The Lawsuit?

After the clerk has sealed the summons, they must be served by certified mail and a copy of the filed complaint. Priority should be given to serving the U.S. Attorney’s office, as it will typically represent the agency at least initially in this matter and may be the only government officials who will notice that they have been served.

After being served, the defendants have sixty days to file an answer. As this deadline approaches, the plaintiff’s attorney can anticipate a phone call from an Assistant US Attorney requesting an extension to file a response.

At or near the time of filing, the court typically issues an order requiring the parties to consult on the scheduling of discovery and dispositive motions to be included in the order.

APA cases are decided on summary judgment motions unless the government successfully moves to dismiss the case beforehand. Local rules dictate the contents of the brief. Still, it is customary to include a table of contents and authorities, a statement of the questions presented, the standard of review, a view of the facts, a summary of the argument, the argument, and a conclusion. All opinions must be based on the administrative record unless the court is asked to take judicial notice of specific facts that cannot be reasonably contested.

Once a brief has been filed in support of a dispositive motion, various courts and judges follow distinct procedures. Numerous judges will take the matter under advisement and issue a written ruling at their leisure. Others may schedule oral arguments and announce their decision following the conclusion of the hearing.

If the decision favors the plaintiff, it does not necessarily follow that the petition will be approved immediately. The government has up to 60 days to file an appeal to the applicable circuit court of appeals with the district court clerk; however, it is uncommon for the government to file an appeal. In other cases, the agency is not bound by the decisions of U.S. district judges, but published circuit court decisions are binding throughout the circuit. Thus, the government has little to gain and much to lose by appealing, and it does so only rarely.

Typically, a judge’s ruling in favor of the plaintiff signifies that the denial has been reversed. The agency could theoretically reevaluate the petition at that point and deny it for another reason. This author is unaware of any APA cases in which this has occurred. Typically, a notice of approval is sent via mail shortly after a court case is won.

Under the Equal Access to Justice Act, a successful plaintiff will be entitled to attorney fees in many instances. Essentially, it must be demonstrated that the client was the prevailing party in the lawsuit, the government’s position is that the suit was not substantially justified, and there are no exceptional circumstances that would preclude the awarding of fees.

What Alternatives Do You Have To Appeal Your H-1B Denial?

The purpose of a motion to reconsider is to convince the officer who denied your H-1B petition that he was mistaken. Given the general human propensity to avoid admitting fault, this strategy is unlikely to be successful unless you present the agency with new arguments or evidence not previously submitted.

The most common response to an H-1B denial is to provide the USCIS with the evidence they claimed was lacking in your petition. This is typically a wise course of action when feasible. However, some USCIS officers had stated that evidence supporting a motion to reopen must not have been available when the petition was submitted.

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