The immigration process can feel like an intimidating black box in the best of circumstances. When faced with difficult circumstances, the idea of considering federal litigation to solve an immigration problem can seem even more daunting. However, litigation is often the best way to solve issues where the government has acted unfairly by issuing a wrongly considered decision or has failed to act at all.
Employers and individuals going through the immigration process should consider litigation in two frustrating situations: 1) where the USCIS has issued a denial that is unreasonable, and 2) where there is a delay in processing that goes well beyond legal limits or posted processing times.
The benefit of litigation is that it changes the nature of the interaction with the government. Whereas filing with the USCIS, and even appealing, creates a black box interaction with a nameless faceless individual at a large agency, litigation creates a more intimate interaction with an individual attorney at the local US Attorney’s office.
Denials
When a case is denied by USCIS, there are several courses of action to consider. Those options include:
In most situations, if the refiling is a viable option, we recommend that first. Refiling is often the fastest route, especially if premium processing is available. With this method, we can also try to address any perceived weaknesses noted in a prior denial notice. However, refiling is not possible for cases like H-1B cap cases and is not practical where premium processing is not available, such as B-1 and naturalization cases.
Motions and Appeals provide the allure of a process with the agency but are fraught with long processing times (usually at least six months without the possibility of any expediting process) and low probabilities of success. Many visa types have about a 10%-20% success rate through appeal.
Litigation can often be more expeditious, as the government has 60 days to respond to any lawsuit. In addition, the government does not wish to litigate most business immigration cases both as a question of internal priorities and to avoid creating case law on these matters. The government will often settle and approve petitions to avoid the efforts related to further litigation.
Cases Pending Beyond Normal Processing Time
USCIS publishes what are considered to be normal processing times, and we can all agree some of these times are not “normal”. However, sometimes cases seem truly stuck, no matter what we do. We will contact the USCIS service center, the ombudsman, and congressional representatives to try to get a decision on an application that is outside normal processing times. When nothing works, litigation is often a very good option to just grease the wheels on an application that may be lost or ignored for some reason. The same process can work for long pending consular cases.