At the 2018 American Immigration Lawyers Association (AILA) National Conference, a common topic of discussion was the fact that the increased issues facing business immigration from USCIS has led to a dramatic shift in where people go for business immigration approval. Since the Trump administration took over, USCIS has increased the number of unjust and unlawful denials while at the same time increasing the adjudication time for cases. This has led to historically long processing times, historically high denial rates, and a regulatory process that does not follow the proper legal standard or a set standard of adjudication. These issues have shifted the battlefield for business immigration, and the fight is no longer at the USCIS service centers but in the federal courthouses.
Writ of Mandamus
As mentioned earlier, one of the major issues facing employers is long processing times from USCIS and cases going well beyond normal processing. These delays are even more apparent when USCIS has suspended premium processing for a vast majority of H-1B cases. When cases are delayed for an “unreasonable” amount of time, employers can file a mandamus action in federal court.
A writ of mandamus, in the USCIS context, is a civil lawsuit that is filed with the federal court seeking to compel the government with its obligation to make a decision in a particular case. While mandamus orders do not impact the outcome of the case, they will compel the agency to act. As mentioned earlier, these cases can be filed when an immigration case has gone on for an “unreasonable” amount of time. The reasonableness of time can be determined in two ways. First, in the rare circumstance that there is a relevant INA provision that states a deadline for USCIS to act, such as premium processing, a case will be considered pending for an unreasonable amount of time if it goes beyond that limit. Determining if a case is ready for mandamus is trickier when there is not an INA provision providing USCIS a deadline to act. The easiest way to determine if a case is ready for mandamus is to see if the case is outside of normal USCIS processing times which can be found online at https://egov.uscis.gov/processing-times/. Additionally, if the case is in normal processing time it is possible to argue that the processing times are unreasonable given the circumstances.
A writ of mandamus can be a powerful tool for employers to use in business immigration cases. USCIS has been taking longer and longer to adjudicate cases and filing a writ of mandamus to compel them to adjudicate in a timely fashion may be helpful to many employers.
Do I have to appeal a denial first? What is reviewed in federal court?
Upon receiving a denial, most employers and employees immediately want to appeal the case. Many believe this is a required first step, and often times the only step, in order to reverse a denial by USCIS. This is a common misconception when it comes to immigration as there is no requirement to exhaust administrative remedies for employment based immigration.
In Darby v. Cisneros the Supreme Court set out four requirements that must be met for a petitioner to be able to go to federal court without first exhausting administrative remedies. Essentially the Darby factors require (1) that the litigation be made pursuant to the Administrative Procedures Act (APA), (2) that there are no statutes that require an administrative appeal, (3) that there are no regulations that mandate an administrate appeal, and if there are regulations, the regulation does not stay the agency decision pending an administrative appeal, and finally (4) that the adverse decision made by the agency is final for purposes of the APA.
As mentioned earlier, employment based immigration cases are not required to exhaust administrative remedies. The APA provides for judicial review for a party who has been “adversely affected or aggrieved” by agency action, and therefore prong one is met. There is no statute that requires for an Administrative Appeals Office (AAO) appeal in employment based immigration, and therefore prong two is met. There are no regulations mandating an administrative appeal for employment based petitions, and therefore prong three is met. Finally, a denial of a petition is final unless an appealed, and therefore prong four is met. As it is not required to go through the AAO, companies that receive a denial can go right to federal court and avoid the long processing times and low success rate that the AAO provides.
What is included in litigation? What are good cases for litigation?
When taking a case to federal court it is important to remember that what is adjudicated by the court is the administrative record. The record will consist of the petition and all supporting documents, USCIS’ Request for Evidence (RFE), the RFE response, and the denial. Given this, it is important to have a good record that addresses all issues in the RFE response and provide good concrete evidence for USCIS to review. One particular piece of evidence that creates a strong record is an expert opinion on either the beneficiary’s qualifications or the specialty occupation nature of the position. These not only provide strong evidence, but will be unrebutted by a counter expert with USCIS.
While not completely inclusive, in the 2018 Business Litigation Handbook, AILA has provided a list of H-1B cases that may be good cases for federal court litigation:
- Cases in which USCIS cites the Occupational Outlook Handbook (OOH) inappropriately:
- Degree “normally required” is ignored or redefined as “always required”,
- USCIS finds occupation not specialty because employer may allow for a range of related degrees. Employer’s position may be supported by OOH;
- Cases where an expert or several expert opinions are in the record;
- Cases in which USCIS, citing no evidence, redefines the position and then determines it is not a specialty occupation, and cases in which USCIS redefines employer’s business and determines that the occupation is not needed;
- Cases in which USCIS, with no evidence, concludes that there is not sufficient work for the H-1B employee; and
- Cases in which the duties of the specialty occupation are set forth with a very high degree of detail and appear complex.
Litigation provides a good alternative to the AAO appeals when it comes to combating a wrongful denial. USCIS continues to make things more difficult and less predictable for employers and appealing can be a long process with limited success. Employers and their attorneys should arm themselves with a solid administrative record in order to prepare for the new business immigration battlefield in the federal courthouses.
 509 U.S. 137 (1993)
By Steven Brown
Steven Brown is an attorney in the firm’s H-1B Department and represents our business clients throughout the entire H-1B, H-4, and H-4 EAD process. Additionally, Steven works with clients with Department of Labor Compliance included assistance with wage and hours investigations. Steven prides himself in being able to provide his clients with creative solutions to complex immigration problems.