Nuts and Bolts of filing a Federal Lawsuit

If, after consulting with an immigration lawyer, you wish to file a federal lawsuit against USCIS for a denial of your case, here is a general overview of how the process will work.

Venue (Where to Sue)

First, you will need to decide which federal court you wish to file your lawsuit.  In general, venue is determined by the judicial district where the defendant resides, where a substantial part of the events or omissions giving rise to the claim occurred, or where the plaintiff resides.  Based on these options, for most people who are filing a lawsuit against USCIS for an application/petition denial, any of the following jurisdictions will apply:

  •  D.C. District
  • Location of the USCIS Service Center that denied the petition
  • Location of employer’s headquarters
  • Place of intended employment for the beneficiary

Whom to Sue

The court will dismiss the lawsuit if it determines that it lacks either personal or subject-matter jurisdiction over a defendant.  Thus, it is safer to list all relevant defendants since a court will proceed to the merits of the case if the court has subject-matter jurisdiction and personal jurisdiction over at least one defendant.  All entities, officials, and executive departments that may be able to grant the requested relief should be identified.  As a result, the following should be considered when listing the defendants to the lawsuit:

  1. Director of the USCIS Service Center
  2. Director of USCIS/DHS
  3. Secretary of DHS
  4. USCIS
  5. DHS

What Relief to Seek

For purposes of denied employment-based applications, the Administrative Procedure Act (APA) will be the statutory basis for challenging the denial.  The complaint should request declaratory relief because if the court finds that the denial by USCIS was wrong as a matter of law, the court may set aside the denial and approve the application/petition.  Because the federal court has greater authority, any decision by the federal court will overrule any decision by USCIS.  An injunctive relief may also be requested in order to postpone the negative effective of a USCIS denial.  This would allow the employee to continue working while the lawsuit is pending.

Filing the Complaint

Specific procedures for the court you are filing in may differ in other districts.  Thus, you should consult the local rules and general orders of the court you are filing in.  However, in general, to begin a civil lawsuit in federal court, the plaintiff must file a complaint with the court and serve a copy of the complaint on the defendant. The complaint must describe how the court has jurisdiction; how venue is proper; information about the parties; a statement of facts; legal argument; and claims and prayer for relief.  After filing the complaint, you will receive a case number and judge assignment. A summons must then be prepared for each named entity and individual, and a hard copy of the summons and complaint must be served on the opposing parties.

As USCIS continues to make things more difficult, we continue to advocate fiercely for our clients as immigration attorneys since we recognize how important and valuable immigration is to the US.  If your case has been denied for any of the reasons listed below, please do not hesitate to contact us at info@visatopia.com

  1. H1B extension denial  (same employer, same job title, same employee);
  2. H1B transfer denial;
  3. Initial H1B denial due to level one wage issue or specialty occupation issue;
  4. L1 extension denial (due to insufficient employees or inadequate managerial duties);
  5. EB1C denial (due to organization structure and position duties);
  6. EB1A denial due to wrongful application of law (e.g. incorrect determination of validity of categories claimed and/or final merits determination);
  7. NIW denial due to wrongful application of law (e.g. wrongful determination on issues of substantial merit, national importance, and well positions to advance proposed endeavor);
  8. I-485 denial or N-400 denial due to communist party membership issue;
  9. Change of status denial due to erroneous findings of facts or wrongful application of law;
  10. EB5 denial due to job creation or source of fund issues;
  11. I-485 adjustment of status or green card application exceeding delay (more than 2 years) due to security check  or unknown reason.