Immigration in the US has become more and more challenging in recent times. Requests for Evidence (RFE), Notices of Intent to Deny (NOID), and denials have all increased across the board. In particular, H-1b, L-1, EB-1, and NIW cases have seen a dramatic increase in RFEs and NOIDs, leading to a higher number of denials than in years past. Such trends can be discouraging, frustrating, as well as costly.
If your case has been denied, what are your options? In the denial notice issued by USCIS, you are given the option of filing a motion to reconsider/reopen or appealing the decision (Form I-290B). However, you must file the motion or appeal within 33 days of the date of the decision as well as pay a filing fee of $675. Despite the time crunch, emotional rollercoaster, and steep additional financial costs, if you feel the decision was unjust or erroneous or your situation desperately requires a different result, it may seem worth it to bite the bullet and file the I-290B. According to the USCIS denial notice, this seems to be your only option other than starting all over and re-filing your case or finding a completely different option.
But what are the actual chances of success after filing an appeal? According to data released by the Administrative Appeals Office (AAO), which adjudicates the appeals, the likelihood of success is relatively low. For EB-1a, the rate of success for an appeal was: 9.4% (2018), 16.1% (2017), and 19.5% (2016). For EB-1c: 18% (2018), 18% (2017), 13.8% (2016). For NIW: 17.8% (2018), 22.7% (2017), and 14.6% (2016). For H-1b: 14.6% (2018), 3.3% (2017), and 2% (2016). For L-1: 15.3% (2018), 7.4% (2017), and 9.5% (2016). For O-1: 0% (2018), 0% (2017), and 0% (2016). As you can see, the odds are not in your favor, particularly if you are contesting an O-1 denial.
For some situations, an appeal or motion to reconsider/reopen is a viable, shrewd, and necessary strategy. However, given the long processing times (6-12 months or longer) and the pessimistic outlook, it would be difficult to fault anyone for giving up or suffering through the pain of just re-filing.
But there is still hope! Another option that USCIS does not tell you about is filing a lawsuit against the US government in federal district court. Under the Administrative Procedure Act (APA), a lawsuit is appropriate when an agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706. This allows you to bypass filing an appeal with the AAO and file the lawsuit directly with the federal court. The advantage here is that the federal court system is independent of USCIS, has greater authority, can override a USCIS decision, does not have to worry about overturning a decision made by “one of its own”, and will rule according to the actual requirements of the applicable laws and regulations and not any internal policy or immigration officer’s whim. Please note that under the APA, there does not need to be an exhaustion of remedies. In other words, once you get a denial from USCIS, you can file with the federal court; you don’t have to file the appeal and wait for a decision. However, if you do file an appeal with the AAO, then a federal lawsuit cannot be filed until the AAO issues a decision. Moreover, as USCIS may not have the resources to battle a protracted lawsuit or may want to save itself from an unfavorable decision, the mere filing of a lawsuit may cause USCIS to reopen your case and approve it.
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 email@example.com.
H1B extension denial (same employer, same job title, same employee);
H1B transfer denial;
Initial H1B denial due to level one wage issue or specialty occupation issue;
L1 extension denial (due to insufficient employees or inadequate managerial duties);
EB1C denial (due to organization structure and position duties);
EB1A denial due to wrongful application of law (e.g. incorrect determination of validity of categories claimed and/or final merits determination);
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);
I-485 denial or N-400 denial due to communist party membership issue;
Change of status denial due to erroneous findings of facts or wrongful application of law;
EB5 denial due to job creation or source of fund issues;
I-485 adjustment of status or green card application exceeding delay (more than 2 years) due to security check or unknown reason.