It’s Time to Litigate: Arbitrary Decisions and Unprecedented Delays of USCIS

       It’s 2019, an era that is seeing an unprecedented spell of visa denials and delays in processing
applications. It’s a hard time to be an immigration attorney, wherein every approval seems like a
victory, which earlier used to be acknowledgement of the process. Since the mid of 2017,
immigration firms are seeing an unprecedented number of RFE (Request for Evidence) requests
by USCIS. USCIS uses the RFE’s as a diversion, ultimately leading to the visa denials in several
cases. Unlucky, because many times it is the genuine cases which are denied, as there are no
fixed criteria or set of rules that a USCIS officer has to follow while adjudicating on a case. This
has led to uncertainty in the decision-making process, as essentially one cannot predict which
case will be approved and which case will be denied. This uncertainty in visa approvals has
affected businesses and their growth, due to inability to recruit specialty and specialized workers
possessing adequate expertise and experience. Some companies have even moved their
businesses out of the U.S. in order to overcome this period of uncertainty.

     Now, one of the remedies available to the affected parties is to litigate visa denials and
processing delays by USCIS. USCIS, while adjudicating a number of cases, commits factual and
legal errors, which can ultimately be used by immigration attorneys and employers as a basis for
pursuing litigation in Federal Courts. Litigating any action of USCIS is a far more result-oriented
option than to file an appeal in the Administrative Appeals Office (AAO) because at AAO, an
employer may face delays and unfavorable decisions. Therefore, the best strategy is to directly
appeal the case in District Federal Courts, where if factors qualify, getting a favorable decision
may be warranted.

      The idea of litigating denials and delays has been cemented by recent adjudication of the cases
by Courts in favor of the employer. If you are facing unreasonable decisions which are circuitous
and make light of the supporting documentation and arguments submitted in the RFE, we urge
you to consider litigation as a tool to preserve your H1B or L1 workforce.

Disclaimer

This article aims to provide you with basic information concerning litigating arbitrary decisions
of the USCIS. This article under no circumstances acts as a piece of legal advice; therefore, for
any further case-specific question, please contact your appointed attorney or the Managing
Attorney of the Ahluwalia Law Offices, P.C. for case-specific legal advice.