Should You Sue Over Delayed or Denied Immigration Cases?

Frustrated by visa processing delays and petition denials? Bypass the appeal process and sue the government in district court, said a panel of immigration attorneys.

The attorneys also encouraged organizations to band together and file lawsuits to challenge government policy changes, such as the U.S. Citizenship and Immigration Services (USCIS) memo published Feb. 22 that requires H-1B employers who send their workers to third-party worksites to submit additional detailed documents such as worker itineraries.

"[You're] actually in possession of powers you didn't know about that can be used to advocate for [your] companies and [your] employees," said Sameer Khedekar, a partner with the immigration law firm Pearl Law Group in San Francisco, speaking to attendees of the Council for Global Immigration 2018 Symposium.

"It's important for us to not only think about challenging individual cases in court, but also to realize we have the power to try to effectuate some change in how adjudicators are reviewing cases overall," said Hendrik Pretorius, an attorney with Pearl Law Group. "When memos come out making some substantive rule change and [the agency] hasn't followed the proper rulemaking procedures, it's helpful to have various organizations come together to provide affidavits or act as joint plaintiffs on cases that can help the entire business community."

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Pretorius gave examples of other recent USCIS actions that merit a challenge:

• A March 2017 memo clarifying that employers must show that "computer programmer" is a specialty occupation.
  
• A change to the USCIS website in early 2018 that restricts third-party placement of Optional Practical Training students with STEM degrees.
  

"Companies can litigate whether these changes have been brought up in proper rulemaking under the Administrative Procedure Act, which governs how regulations are proposed and changed," Pretorius said.

Employers can also challenge individual case denials. "The Trump administration has clearly had an impact on adjudications, and we're all having to deal with huge increases in requests for evidence and delays as a result, and denials that we have to contend with," he said.

Agency Appeals or Litigation?

Khedekar explained that when a visa petition is denied, "you can either forget about it, file a motion to reopen the case, or appeal up the chain to the USCIS Administrative Appeals Office, which I generally consider to be a waste of time."

Jonathan Wasden, formerly an attorney with the Administrative Appeals Office and currently the lead lawyer in a lawsuit calling for an injunction of the Feb. 22 USCIS memo, said that administrative remedies do not have to be exhausted before filing suit, and companies are better off going straight to court.

"Regardless of the strength of your argument or the statute you're citing, [the agency appeals process] is meant to backstop the service center and support the agency's position," he said. "They will search until they find some reason to deny your case."

If organizations take their denied case to district court, USCIS must defend any errors in its decision, Wasden said. It can't supplement or modify the case, which can be done during the agency appeals process.

"While you're suing, the court can protect any adverse impact from the agency decision and order that the foreign worker receives benefits, legal presence and lawful employment during the pendency of the case," he said.

Wasden said in his experience, the agency is "so sensitive to litigation and so afraid that they will be forced to change their processes in court that they will avoid people known for frequent litigation."

Take denials, for example. "In any given visa category, there are a finite number of bases for denials," he said. "If you kill one of those bases in court, you've just killed a huge portion of the agency's workload."

He added that USCIS just doesn't have the personnel and resources to ramp up if companies started suing to overturn their case decisions.

The same theory holds true for mandamus filings challenging processing delays. Mandamus lawsuits can be used to challenge delays in the adjudication of visa applications and petitions by compelling the agency to act where they have a legal duty to do so but have not.

"As soon as you hit the posted processing time for adjudication on the USCIS website, you have a decent argument for filing mandamus," Wasden said.

Pretorius added that if more companies were filing mandamus challenges, the agency might start feeling more pressure.