The most common statutory basis for challenging the denial of an employment-based petition (I-140) is the Administrative Procedure Act (APA), which governs how regulations are proposed and changed. Filing a claim under the APA is appropriate when an agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706. Under the APA, you can sue if you feel that the immigration officer ignored the evidence and documentation provided in the filing or relied on arbitrary or incorrect legal conclusions to deny a petition. In such instances, a declaratory judgment action will be sought in order for a federal court judge to challenge and overturn the USCIS denial, i.e. if the judge finds that USCIS wrongfully denied an immigrant or nonimmigrant visa based on an unlawful practice or a violation of existing regulations. The APA can also be used if there has been an unreasonable delay in the adjudication of your case. To do so, mandamus relief must be sought to challenge unreasonable delays in adjudication; this relief compels USCIS to act and issue a decision.
In general, before filing a federal lawsuit for review of an agency’s decision, a party must exhaust all administrative remedies. If not, the court may find that it has no jurisdiction or may refuse to review the decision. However, the Supreme Court held in Darby v. Cisneros that under the APA, a plaintiff can be required to exhaust only administrative remedies that are mandated by either a statute or regulation, thereby establishing a major exception to the exhaustion requirement. As an appeal is not mandated by statute or regulation, most courts have found that filing an appeal with the AAO is not required to exhaust all administrative remedies. Thus, filing the I-290B after a denial is not necessary to pursue a lawsuit against USCIS in federal court.
However, under the APA, the decision being challenged must be final. A decision is final when a “decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” In most cases, a denial by USCIS will constitute as a final decision under this standard. Several courts have held that a decision is not final if there is an administrative appeal pending. Thus, if you file an I-290B appeal, motion to reconsider, or motion to re-open, the federal court may dismiss your case until the I-290B has been concluded. The finality requirement has also created loopholes in the process. Upon filing a federal lawsuit, USCIS may re-open your case, at which point, the federal court may deem that it no longer has jurisdiction over the matter since there is no finality of your case as a result. Even if USCIS ends up, once again, denying your case, USCIS’ reopening of your case may take your lawsuit out of the federal court’s hands.
Judicial review under the APA generally is limited to the administrative record that was before the agency when it made its decision. In other words, the federal court will only review the evidence that was provided at the time of the final decision. You will not be able to provide new documentation or evidence when filing the federal lawsuit. As a result, it may sometimes be necessary to file an I-290B appeal in order to supplement the record if you were not able to provide a full and complete record during the initial filing or in a response to a Request for Evidence (RFE) or Notice of Intent to Deny (NOIR).
Because the APA does not have its own specific statute of limitations, the general six-year limitation applies.
In many cases, filing a federal lawsuit will cause USCIS to re-open your case and approve it. However, if the lawsuit continues and the plaintiff eventually prevails, the attorney may seek fees under the Equal Access to Justice Act (EAJA). Attorneys’ fees and costs should be listed in the complaint as part of the relief sought and a separate motion must be filed within the statutory deadline. Unless there is a written assignment of fees agreement between the lawyer and the client, any fees awarded will belong to the client.
As USCIS continues to make things more difficult, we continue to advocate fiercely for our clients as immigration attorneys since we recognize how important and valuable immigration is to the US. If your case has been denied for any of the reasons listed below, please do not hesitate to contact us at info@visatopia.com.
H1B extension denial (same employer, same job title, same employee);
H1B transfer denial;
Initial H1B denial due to level one wage issue or specialty occupation issue;
L1 extension denial (due to insufficient employees or inadequate managerial duties);
EB1C denial (due to organization structure and position duties);
EB1A denial due to wrongful application of law (e.g. incorrect determination of validity of categories claimed and/or final merits determination);
NIW denial due to wrongful application of law (e.g. wrongful determination on issues of substantial merit, national importance, and well positions to advance proposed endeavor);
I-485 denial or N-400 denial due to communist party membership issue;
Change of status denial due to erroneous findings of facts or wrongful application of law;
EB5 denial due to job creation or source of fund issues;
I-485 adjustment of status or green card application exceeding delay (more than 2 years) due to security check or unknown reason.