As if the lottery system weren’t stressful enough, once you get through the lottery and are actually selected for a cap-subject H-1B, you still have to wait and see if the petition will ultimately be approved. This year (FY2019) many regular processing petitions remain pending in October due to slow processing times and Requests for Evidence. I am often contacted by applicants who were so happy to be selected, only to later end up with a denial. What can you do in that situation?
In cases that do not involve the H-1B lottery, I tend to lean towards re-filing the petition as an option to overcome denial. Unfortunately, for cap-subject petitions, re-filing is not an option since the filing window will not open up again until April 1st.
That leaves two options:
Motion to Reopen/Reconsider/Appeal
While I won’t get into the specifics of what a Motion versus an Appeal or the difference between Reopen and Reconsider, there are some important points to be aware of if you choose to act on the denial of your H-1B petition.
1. a motion or appeal does not give you status and does not give you work authorization: you should discuss with your attorney regarding options for maintaining your status while you wait for the result.
2. if the appeal is forwarded to the Administrative Appeals Office (AAO) you may not hear back until it is time to file in next year’s lottery. The question then becomes whether you should file again in April or wait to hear back on the appeal. If you choose to file again, you may be asked to withdraw the pending appeal. Note that would only occur if your new petition is selected in the lottery. Of course, the fees have to be paid again, but if you don’t file again and your appeal ends up denied sometime in May, you just lost your chance to file and have to wait 11 more months.
Also be aware that the success rate at the AAO is very low. In FY2017, with respect to H-1B petitions, the AAO dismissed 598 appeals, sustained only 22 and remanded 44. That means only about 3% of appeals resulted in the decision being reversed by the AAO.
Federal Court Litigation
The Administrative Procedures Act can be an effective tool for an employer to challenge an unlawful denial of an H-1B petition on the grounds that the decision was arbitrary or capricious. The case would be reviewed by a judge who is not part of USCIS. The judge would have to decide if there was a rational basis for the USCIS decision. No new evidence can be submitted; the judge would make the decision based only on the documentation already submitted to USCIS. If the USCIS denial was wrong as a matter of law, the court can vacate the denial and approve the petition. If the challenge is to USCIS’ findings of fact or application of the law to the facts, then the court can remand with specific instructions as to how the agency must correct its errors. It may also be possible to obtain a preliminary injunction to keep the beneficiary in status or avoid accruing unlawful presence while the litigation is pending.
There are lots of things to consider in the event of a denial of a cap-subject H-1B petition. These are just a few. You should always consult with a qualified immigration attorney in the event of a denial to come up with the best strategy for your situation.