Understanding I-290B Appeals and APA Litigation

Receiving a denial notice for an H-1B petition can feel devastating for both the employer who invested in the process and the foreign professional whose career may suddenly be on hold. But a denial is not necessarily the end of the road. U.S. Citizenship and Immigration Services (USCIS) decisions can be challenged and, in many cases, reversed.

There are several ways to respond to a denial, depending on the reason for USCIS’s decision, the quality of the evidence in the record, and how urgently the employer and employee need a resolution. The two primary routes are:

• Filing Form I-290B (an appeal or motion within USCIS), or
• Filing a federal court lawsuit under the Administrative Procedure Act (APA).

Both are legitimate paths for overturning an unjust denial but they differ in timing, process, and who controls the outcome. This article explains the common causes of H-1B denials, how each option works, and what factors should guide your choice.

Common Reasons for H-1B Denials

H-1B petitions are denied for a variety of reasons, but most denials fall into predictable categories:

1. Specialty Occupation Challenges

USCIS often questions whether the offered position actually qualifies as a “specialty occupation” meaning one that normally requires at least a bachelor’s degree in a specific field. Denials frequently cite that the role is “too general” or could be performed by someone without a degree in a narrowly defined specialty. Sometimes they just take issues with the evidence submitted, and do not give it the weight that they should.

This issue arises most often in fields like IT consulting, business analysis, marketing, and data roles where job descriptions span multiple disciplines. Even with strong evidence, USCIS sometimes ignores industry standards, detailed job descriptions, or expert opinions that clearly show a need for specialized education.

2. Beneficiary Qualifications

Another common issue involves the foreign national’s qualifications. Even if the job qualifies as a specialty occupation, USCIS may argue that the employee’s degree is not directly related to the field. For example, if a software developer holds a degree in mathematics or physics rather than computer science, USCIS may deny the case despite long-standing industry acceptance of such educational backgrounds.

3. Technical or Procedural Errors

Sometimes, the reason is as simple as a missing document, an unsigned form, or an incorrect wage level designation. In these cases, a targeted response can often resolve the issue quickly.

In every scenario, the key is identifying whether USCIS misapplied the law, ignored evidence, or failed to provide a rational explanation for its decision. When that happens, the law provides clear remedies to challenge the denial.

Option 1: Filing an I-290B Appeal or Motion

The most direct administrative remedy is Form I-290B, Notice of Appeal or Motion. This form allows the employer (as petitioner) to ask USCIS to review the denial. It must be filed within 30 days of the decision (or 33 days if the notice was mailed).

Types of I-290B Filings

1. Appeal to the Administrative Appeals Office (AAO) – The appeal is reviewed by a different USCIS division, the AAO, which conducts a “de novo” review of the record. The AAO may affirm the denial, reverse it, or send it back to the original office for reconsideration. If you file an AAO appeal with your brief timely, it will function as an MTR first and then an appeal.
2. Motion to Reopen – This motion introduces new facts or evidence that were not available when the petition was first decided. It’s appropriate if the denial resulted from missing documentation or facts that have since changed.
3. Motion to Reconsider – This asks USCIS to review the decision based on the same record, arguing that the officer misapplied the law or facts. No new evidence is added.

All three actions use the same form and fee. Importantly, only the petitioner (the employer) can file the I-290B — not the employee. This means that if the employer declines to pursue it, the foreign national cannot appeal internally.

Pros of Filing an I-290B

• You can add evidence: A motion to reopen lets you provide documents that were missing or incomplete in the original filing — such as client letters, project details, or expert statements.
• Administrative record building: Even if USCIS denies again, you’ve created a clearer record for future litigation or re-filing.
• Lower cost than litigation: It’s handled entirely within the agency and doesn’t require court filings or hearings.

Cons of Filing an I-290B

• Delays: AAO appeals can take six months to a year or more. Meanwhile, the employee might lose status or be forced to stop working. Filing an I-290B does not grant status or toll unlawful presence.
• USCIS reviews its own work: The agency acts as both referee and player, and AAO decisions often defer to the original denial.
• Limited beneficiary control: Since only the employer can file, a foreign national has no direct role in the process.

In short, the I-290B process can be useful if new evidence exists or the employer wants to exhaust all administrative options before court. But when the record is already strong and USCIS’s reasoning is flawed, many employers and employees find litigation to be faster and more effective.

Option 2: Filing an APA Lawsuit in Federal Court

If USCIS’s denial is arbitrary, capricious, or contrary to law, you can challenge it in federal court under the Administrative Procedure Act (APA). This approach moves the dispute out of USCIS and into an impartial judicial forum.

Who Can Sue

Both the employer and the H-1B beneficiary can bring an APA lawsuit. Courts have repeatedly recognized that the foreign worker has standing because the denial directly impacts their ability to live and work in the United States. While it is most common for the employer to be a plaintiff, it is not out of the realm of possibilities, and our firm has handled plenty of cases, for the Beneficiary to challenge the denial. This is an important distinction even if the employer chooses not to pursue a case, the worker can still do so independently.

How APA Litigation Works

1. Filing the Complaint: Your attorney files a complaint in federal district court (usually where the employer or employee resides or where the decision was made). The complaint outlines the facts, identifies the legal errors in USCIS’s reasoning, and asks the court to set aside the denial.
2. Government Response: The government must respond within 60 days of being served. Many times, though no guarantee, USCIS will reconsider the case during this time rather than defend a weak decision in court.
3. Possible Settlement or Reopening: Many cases resolve early and USCIS agrees to reopen the petition, review it again, and frequently approve it. Sometimes they will reissue a new RFE so they can approve on “new” information.
4. Judicial Review: If the government defends the denial, both sides submit written briefs. The judge reviews the administrative record and decides whether the denial followed the law. There is no trial or testimony.

Advantages of APA Litigation

• Independent review: A federal judge, not USCIS, decides whether the denial was lawful. This provides a level playing field.
• Faster resolution: Many lawsuits can lead to reopening or approval within two to four months, far quicker than the AAO. Though this is never a guarantee if the government fights the case.
• Higher success rates: If the petition record is strong, litigation has a strong track record of success. Our firm has secured numerous approvals after filing suit. This is counter to the trends nationally with I-290B where USCIS plays backstop to itself.
• Beneficiary empowerment: The worker can participate directly, even if the employer hesitates. This can be helpful in situations where the company is okay with proceeding  but does not want to drive the bus or be the plaintiff.
• No retaliation risk: Filing a lawsuit does not harm future petitions or trigger negative treatment. Thousands of immigration lawsuits are filed every year without consequence to future cases.

Considerations Before Filing

• Quality of the record: The court reviews only the evidence USCIS had when making its decision. If crucial documents were missing, it may be better to reopen or re-file before suing.
• Cost: Litigation is can be more expensive than an appeal but often delivers results faster.
• Timing: Because litigation moves quickly, it’s ideal when time is critical — for example, when a worker’s status is expiring or a project cannot wait.

In short, APA litigation is best suited for denials that were legally or factually flawed despite a complete petition record. It is one of the most effective tools available for holding USCIS accountable to the law.

 

Comparing I-290B Appeals and APA Litigation

Factor	I-290B Appeal or Motion	APA Lawsuit
Who can file	Only the petitioner (employer)	Employer and/or beneficiary
Decision-maker	USCIS or its AAO division	Independent federal judge
Timeline	6–12+ months typical	2–6 months on average
Can add new evidence	Yes (motion to reopen)	No (limited to existing record)
Cost	Lower filing fee, fewer attorney costs	Higher upfront cost but often faster
Success rate	Historically low	Frequently high when record is strong
Control	USCIS “reviews itself”	Neutral judicial review
Risk of retaliation	None	None
Best when	Evidence was missing or new information exists	Record is complete and denial appears unlawful

 

Strategic Considerations

When advising clients, we look closely at the denial notice and the administrative record. Here are general guidelines:

• If evidence was incomplete: A motion to reopen may allow you to fill the gaps without court involvement. It can also bolster your record if needed. You cannot add new evidence in court, but you can at an I-290B.
• If USCIS ignored strong evidence or misinterpreted the law: Litigation often provides the best chance of success. At a minimum it provides a neutral look rather than the same agency.
• If the case involves policy issues or recurring USCIS errors: Court oversight can lead not only to an approval but could also to broader policy correction.
• If the H-1B was cap-subject: Because you cannot simply re-file a lottery case outside of April, litigation may be the only realistic option.
• If time is running out: Litigation is typically faster. An appeal could leave the employee out of work for months.

Each case requires a tailored approach. In many situations, we combine strategies — filing a motion to reopen while simultaneously preparing a lawsuit if USCIS fails to act.

What About Refiling?

Refiling a new H-1B petition can also be a viable path, especially if the denial was due to a fixable issue and the worker’s status allows for a new filing. Refiling gives USCIS a fresh look at the case, often with improved evidence and updated explanations.

However, refiling is not always possible particularly if the denied petition was subject to the H-1B cap and there are no available cap numbers until the next fiscal year. In that scenario, litigation is usually the only way to challenge an unfair denial and preserve the worker’s chance to remain employed. This is also not an option if the beneficiary is unlawfully present.

The Role of Legal Counsel

Challenging a denial whether through appeal, motion, or litigation requires a deep understanding of immigration regulations, administrative law, and the evolving standards USCIS applies to H-1B adjudications.

At Reddy Neumann Brown PC, we have successfully overturned denials for specialty occupation disputes, beneficiary qualification issues, and, in previous regulatory schemes, employer-employee relationship findings. Our litigation team routinely represents both employers and employees in APA actions across the country, achieving swift resolutions that restore jobs and compliance.

We also help clients evaluate the strength of their record before deciding whether to appeal, refile, or sue. Often, we can identify key missing elements in the initial petition and craft a strategy to either supplement them in a motion or present them more effectively in court.

Moving Forward After an H-1B Denial

Every H-1B denial carries both legal and practical consequences  but it also offers a new opportunity to correct the record and hold the agency accountable. Whether through a carefully prepared motion or a decisive lawsuit, employers and employees can and do win these cases.

If your H-1B petition has been denied, it is critical to act quickly. Appeal and motion deadlines are strict, and litigation planning should begin immediately to preserve your rights.

By: Steven Brown

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.