Litigation: A Worthy Option to Help Save Immigration Cases

Even a casual observer of the business immigration landscape knows that it is only becoming more difficult to obtain authorization to work in the United States. The Trump administration has made no secret of its stated goal of reducing legal immigration by 50 percent, and it has made progress toward that goal by issuing requests for evidence (RFEs) and denials at an alarming rate. Moreover, both employers and foreign nationals continue to face lengthy adjudication delays, or in some instances, even a failure for a decision to ever be reached by U.S. Citizenship & Immigration Services (USCIS). In addition, the Department of Homeland Security is again in a state of transition. Recently, Homeland Security Secretary Kirstjen Nielsen was forced to resign and top officials at USCIS also appear to be on the way out of the administration in the coming weeks. While President Donald Trump’s replacement nominees are not yet known, there is no doubt that they will be even more aggressive in pursuing the administration’s agenda. This chaotic environment has left many foreign nationals, and their employers, feeling like they have no viable recourse when facing an agency that seems to view its mission as to “delay or deny” requests to work in the United States. As such, attorneys and employers are becoming willing to challenge government action in court when warranted, and are succeeding in getting adverse decisions reversed.

Many USCIS RFEs and denials contain errors of law and facts and represent ideal cases for potential litigation. Indeed, litigation in federal court may be the only option to save a case after receiving a denial from USCIS. As with all potential cases, the path to filing an action should start with evaluating the opportunity for success. Clearly, factual or legal adjudication errors, and identifying inconsistencies with prior decisions are all positive factors. Moreover, USCIS often fails to acknowledge or adequately address supporting evidence, including expert opinion letters, which can also provide a strong basis to lodge a challenge in federal court.