Can an employer sue USCIS when they screw up the denial of their H-1B?
You may find it strange to hear, but Immigration makes mistakes.
Yes, they do.
We see them making mistakes all the time.
On H-1Bs, which are employment-based visas, we’ve been seeing lots of crazy denials.
Typically what you do when you get a bad decision on an I-129, Petition for a Nonimmigrant Alien Worker, you file an administrative appeal at the Administrative Appeals Office.
That is a very passive way of approaching the denial of an H-1B. USCIS loves to deny cases.
People often operate from the assumption that USCIS wants to approve a case, or that at least they treat the case fairly.
But what if that’s not true?
What if they’re looking for reasons that they can come up with to deny your case.
What if they’re coming up with reasons they don’t have anything to do with your case, just so that they can keep their denial rates up, because don’t be mistaken, I am 100% sure that there are rewards or tracking at least for the denials of a H-1Bs.
We have seen a huge spike in the number of requests for evidence.
We have seen a huge spike in the numbers of notices of intent to deny.
We’ve seen a huge spike in outright denials, and we’re tired of it.
We’re sick of it. And we’re not just going to file mealy-mouthed administrative appeals anymore.
We may, because that might be what’s best for the client.
But what we’re doing now is, we’re going into federal court.
We’re suing USCIS.
We’re asking a federal judge who doesn’t work for Immigration to review the decisions.
Let me give you an example, the other day we had an employer, they have an H-1B worker who they depend upon heavily.
She’s not on H-1B yet, because she’s on optional practical training and having graduated from a local university.
But she’s running all the software, all the online software support for their company.
They really, really, really need her.
We filed an H-1B back in April, and the current Administration is dragging out these cases, they’ve taken away premium processing.
They’re doing everything that they can to slow down the case.
And what we saw was a denial and the denial was filled with mistakes.
Yes, you heard that right, mistakes.
There were errors all over the decision.
USCIS kept claiming falsely that our client was a third party placement company, but this was a direct hire.
This was a situation where the employee worked for the employer, 40 hours a week, 50 hours a week.
This was not a situation where the employer was placing them with a third party end user.
The decision had tons of other mistakes.
So instead of just filing an Administrative Appeal, we filed an action under the Administrative Procedures Act in federal court.
We’re asking a federal judge, a federal judge who is appointed for life, who is never up for retention, who doesn’t have to worry about what the current Administration thinks.
Who doesn’t have to worry about what the US Attorney thinks, who doesn’t have to worry about what we think, federal judges can do whatever they want.
So we’re really excited about this new avenue of relief. We have two pending H-1B denial lawsuits, and I anticipate, we’ll be filing a whole lot more.
The Administration has gotten out of control with their denials.
They’ve gotten out of control with all the requests for evidence.
They’re working so fast to deny as many cases as possible that they’re being sloppy, they’re being lazy, and they’re being junky with their decisions.
The decisions are junk, they’re crap. And so we’re not taking it anymore.
We’re just not going to do it. We’re not just going to appeal anymore, now we’re going to file suit.
When we file suit, the government has to answer the lawsuit. They get 60 days to answer.
So, not only do we hopefully get a decision faster, but we’re going to get a fresh set of eyes. We’re going to get a US Attorney.
We’re going to get a USCIS Attorney to look at the case and say, “Is this really what we want to fight over? Do we really feel like we can defend this stupid denial? There was clearly mistakes here.”
I suspect that there’s going to be a lot of horse-trading, they are going to be able to negotiate.
We’re going to be able to figure things out with the US Attorney. We’re going to be able to demonstrate to them that this is not a case that they want to litigate.
So if you have been the victim, and I say victim in all sense of the word. I mean it, if you’ve been a victim of an overly zealous, an overly aggressive and an overly foolish USCIS, don’t just file an administrative appeal.
Don’t just sit on your hands, sue them.
That’s what you do, you sue them. I’m thinking about getting a license plate that says, sue them.
I probably will, because we filed many, many lawsuits for delays. And now we’re filing lawsuits for H-1Bs.
If you have any questions about filing a lawsuit against USCIS for when they screw up your case and deny it without reason, or for the wrong reasons, give us a call at 314-961-8200.
You can always email us at [email protected]