Andrew J. Zeltner, Klasko Immigration Law Partners

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.

With these realities in mind, it becomes critical for employers and attorneys to prepare case filings with the notion that litigation may become necessary. With very limited exceptions, employers cannot supplement the record during litigation, so utilizing the initial filing and any RFE response to “create the record” that one would like to litigate is a golden opportunity that should not be discarded. In addition, many practitioners are under the impression that they must exhaust all administrative remedies before pursuing a case in federal court. To the contrary, a case may be filed directly in federal court upon receiving an initial denial from USCIS; and it is not required to file an appeal with the Administrative Appeals Office (AAO). In fact, this can be a poor strategic decision, as very few cases are overturned in favor of the petitioning employer at the AAO. The AAO can also take several months to issue a decision and litigation may represent a more expeditious strategy.

Litigation also comes with the distinct advantage of having the case reviewed by a U.S. attorney and federal judge, who often do not share the same restrictive legal or policy views that are currently being advanced by those at USCIS. This disparity can work in the employer's favor by leading to a prompt settlement, as the assigned U.S. attorney may simply not want to be the one willing to defend a difficult agency position in court. Moreover, early settlements are much more likely to occur when “strong” cases are filed, as the government has proven loathe to risk having actual published decisions on the record that directly contradict their policy goals of limiting immigration. In these instances, USCIS has simply approved such cases (thereby ending the entire litigation) before a response to the complaint is ever required to be filed.

Of course, litigation may not represent the best initial strategy due to costs and business needs. In a given case, it may make sense to refile a case or file a motion to reopen, in order to have the case reviewed by a different immigration examiner. When weighing the option of litigating in federal court, there are many variables to consider, including a client's willingness to pursue the case after receiving a denial. However, the foreign national beneficiary may be able to maintain lawful immigration status while the case is pending, which can be critical for key employees. Unfortunately, one of the largest obstacles to filing a case can lie in convincing the petitioning employer to be a plaintiff, as many employers are wary of the potential media exposure of litigation or are fearful of retaliation by the Trump administration. While it is understandable that some employers would be apprehensive and fearful of government retaliation, there have been no indications that USCIS has the desire, intent or even the resources to retaliate. In fact, the opposite appears to be true, as USCIS has seemed to have a grudging respect for the distinct minority of practitioners and employers willing to pursue litigation and has often been eager to settle cases.

In sum, litigation will not be the immediate answer for every USCIS denial. However, in this adjudicatory environment, it is an option that is worthy of serious consideration and may be the last chance a client has to obtain a favorable outcome.

Andrew J. Zeltner is an associate in Klasko Immigration Law Partners' Philadelphia office. He handles a wide array of corporate immigration matters including those involving the processing of permanent resident applications (green cards) on behalf of multinational corporate and individual clients, including labor certification applications, immigrant visa petitions and adjustment of status applications.