In recent years, the U.S. Citizenship & Immigration Services (USCIS) has been increasingly issuing denials of employment-based visa applications and petitions that previously would have been approved without question. Routine visa renewals started receiving lengthy requests for evidence (RFEs), with many visas ultimately being denied for no longer meeting visa requirements.
H-1B Visa Denial
One of David Hirson and Partners, LLP’s (DHP) corporate clients had an employee face this exact circumstance. The employee had been in the United States in valid H-1B status since 2013 working as a business systems analyst after receiving her bachelor’s and master’s degrees in engineering. The employee decided to come work for our corporate client in a Software Development position, and thus the company filed an application to extend her H-1B status and change her employer with USCIS.
USCIS denied the application, finding that the position was not a specialty occupation and that the employee’s engineering degrees did not qualify her for the position. The denial left the employee immediately out of status and unable to work for the company. Our office stepped in and filed an action under the Administrative Procedure Act (APA) in federal district court, challenging the denial as arbitrary and capricious. At the same time, we filed a request for a temporary restraining order and preliminary injunction asking the court to maintain the status quo during the proceedings, and allow the employee to remain in status with work authorization until a final decision was rendered. Despite the government’s opposition, the court granted the temporary restraining order and preliminary injunction – our client went straight back to work and could breathe easy knowing her status was not in question and she could stay in the U.S. with her family. After the restraining order was granted, USCIS reopened the case and issued a request for evidence regarding the position and the employee’s qualifications. After negotiating and providing additional evidence, the H-1B was ultimately approved, and there were no issues with her subsequent extension.
Despite increasingly strict policies and unlawful denials, there are still options to ensure that justice is upheld in the immigration system. David Hirson and Partners, LLP is here to help fight for your immigration case.
Writ of Mandamus
Additionally, if you are an immigrant who has found that your case is taking too long to process, then there is some relief to force USCIS to adjudicate your case in a timely manner.
In immigration, a Writ of Mandamus is a lawsuit that is filed in federal court asking the court to force USCIS (and related governmental agencies) to make a decision on a pending petition or application.
Through such lawsuits, and due to experience and knowledge of litigation attorneys at DHP, we have been successful in forcing USCIS to adjudicate cases in 90 days or less. Our initial due diligence allows us to make calculated chances of success, which means that a majority of our mandamus cases have been settled in favor of the Plaintiff or Petitioner, in other words: DHP’s hard work resulted in approvals for our clients.
If you believe your immigration case has been pending for too long or was improperly denied, contact us today to schedule a consult with one of DHP’s immigration attorneys.