Whether properly or otherwise, USCIS can and does deny immigrant and non-immigrant petitions for a number of reasons. Without being overly harsh toward USCIS, it has been our experience that denials are typically attributable to USCIS’ clear adjudicative error or otherwise their inability to properly apply the regulations or policy in the proscribed manner. Of course, there are cases which not even the most novice officer would approve and we must respect that. However, a denial should not be thought of as fatal.
While a denial from USCIS may feel like the end of the world, it’s crucial to recognize that there are numerous available routes forward. While no two immigration journeys are the same, everyone “enjoying” the US immigration system knows the bureaucracy is be complex and that often times USCIS’s improper or careless decisions hinder families and unduly punish US businesses. However, a denial of your I-140 or H-1B I-120 does not have to be a roadblock.
By engaging in open communication with your legal team, seeking alternative channels, and collaborating with stakeholders, we are entirely confident that there are a number of available avenues to enable immigrants to can navigate through the choppy waters of USCIS’s ocean of bureaucratic challenges. Remember, USCIS is a human-made system and an error prone bureaucracy. Sometimes their decisions are without any reasoning or logic or just flat out wrong, completely devoid of any recognition of very basic documentation or facts established by the Alien’s background or record. With a bit of creativity, persistence, and most importantly patience, there are a number of available avenues to either fight the good fight, or fight another day so that we can continue moving towards our employment and immigration goals.
While no two denials are the same, and while we must recognize that there are no one-size-fits-all solutions, depending upon the background facts of your case consider the following:
- Re-Filing I-140
An I-140 denial does not preclude the sponsoring company from simply re-filing the petition. USCIS looks at each and every petition on their own merits and the fact that a previous petition was denied in no way prejudices a future filing. The same applies for self-petitioned EB-1A Extraordinary Ability or EB-2 National Interest Waiver petitions.
If an I-140 requires a PERM Labor Certification (ETA 9089), an I-140 denial does not invalidate that PERM nor does an I-140 denial prevent the use of that PERM in future filings. Generally, a PERM is valid for six months; so long as a single I-140 is filed within that six-month validity period USCIS then considers that PERM valid indefinitely meaning it can be used to re-file and/or amend that I-140 after six-month PERM validity period expires. Therefore, if you face an I-140 denial there is no explicit need to obtain a new Labor Certification. A company can use that Labor Certification (even if expired) to re-file an I-140 for their sponsored employee and there is no deadline to re-file that I-140.
If faced with a denial, a company can re-file the case by re-submitting the case with fresh $700 filing fees. Generally, USCIS will review the case as if the denial never occurred. USCIS processes the case within the “regular” processing timeframe of 4-8 months and premium processing is typically available for re-filed cases. Unless there is something seriously wrong with the filing, it is rare to see a re-filed I-140 denied.
- Re-filing H-1B
Whether or not an H-1B can or should be re-filed post denial is often a question of whether the underlying non-immigrant status been maintained. If the underlying non-immigrant status is remains undisturbed or has not expired, one can simply re-file the H-1B/I-129 and hope for a better result from USCIS. In the instance that the H-1B has been denied and the underlying status is disturbed or has expired, the likely solution is to re-file the H-1B and request consular processing. In this instance, one cannot likely change or extend their status because the underlying status has since expired. Thus, to obtain or refresh the non-immigrant status, one is required to go for visa stamping subsequent to the approval of the I-129.
In either instance, it is not typical that the sponsoring company/employer would be required to obtain a new Labor Condition Application (LCA).
- I-290B Appeal, Motion to Reopen, or Motion to Reconsider
To appeal a decision from USCIS, the Form I-290B is utilized and must generally be submitted within 15-30 days of the original denial decision. When filing an I-290B, the individual has the option to file 1) an appeal directly to the Administrative Appeals Office (AAO), 2) a Motion to Reopen, or 3) a Motion to Reconsider. USCIS charges a non-refundable Form I-290B filing fee of $675.
When filing an appeal directly to the AAO, one can present a legal brief of the facts and law at issue arguing that USCIS erred due to misapplication of policy, fact, or law. Here, the AAO reviews the case de novo meaning “from the beginning”. In an appeal, the AAO will review the case as if they were the first adjudicative body to ever see the case. If they feel USCIS was wrong in their decision after reviewing the legal brief and facts presented, they will order or direct the USCIS service center to correct or re-visit their decision. If they feel USCIS was correct in their decision—or if the AAO independently finds their own reasons for denying the case—the AAO will dismiss the appeal and the case is “closed”.
When filing a Motion to Reopen, as the name implies we are requesting USCIS reopen of a previously denied or closed immigration case and should be filed where you believe that there is new evidence or information that was not available at the time of the original decision, which would on the balance change the outcome of the previously denied case. If USCIS sees that this new evidence or information tilts the case toward approvability, USCIS will like approve the case. If not, the service center will dismiss the motion and the case remains “closed”.
When filing a Motion to Reconsider, as the name implies we are requesting USCIS reconsider of a previously denied or closed immigration case and should be filed where you believe that USCIS’ decision on the record was not in line with fact or law. Rather than going to the AAO, we go straight back to the denying officer and point out how or why they were wrong in reaching their decision. You are not introducing new evidence or information, but rather arguing that USCIS made an error in their initial decision. If USCIS is convinced by the new argument, USCIS will approve the case. If not, the service center will dismiss the motion and the case remains “closed”.
Another option for a denied immigrant visa petition may be litigation. Often times, the threat of litigation moves USCIS from their position(s) if stubbornness and typically results in a positive outcome for our clients. Litigation isn’t going to be an option for every case, and a lot will depend on the facts, case law in the area the case will be filed, and the issues presented. However, filing a lawsuit in federal court can be an effective tool, and it is often a better option than filing with the AAO as you will likely get a fairer, faster review of the case.
If you are faced with an H-1B or I-140 denial, it is crucial you consult with an immigration attorney to fully understand the consequences of that denial as well as the potential options available to you so that you can make an informed decision in the bests interest of yourself, your employees, and their families.
For more information, or for a detailed conversation regarding your specific denial and possible routes forward, please schedule a time to speak here.
By: Ryan A. Wilck and Steven Brown, Partners and Attorneys at Law
Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.
We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.