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Administrative Review Versus Judicial Review When an Employment-Based Petition Is Denied

Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by attracting worldwide talent, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. Rather, the administration continues to attack all pathways to legal immigration under its misguided America First philosophy.

The stakes for an approval have become even higher, as USCIS recently announced that it will “issue an NTA [Notice to Appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” In yet another recent policy, USCIS instructs adjudicating officials to deny applications based on the lack of “sufficient initial evidence” without the issuance of an RFE or notice of intent to deny. This could be subjectively viewed as resulting in more denials followed by NTAs.

Upon the USCIS Service Center denying an employment-based petition, the petitioner may file Form I-290B, Notice of Appeal or Motion in order to appeal to the Administrative Appeals Office (AAO) within 30 days (plus 3 days if received in the mail) of the decision. Alternatively, the petitioner may request a motion to reopen or a motion to reconsider or both with 33 days of the decision. The petitioner may also opt to seek judicial review in federal court without going to the AAO. In addition, a petitioner may also wish to re-file the petition, which may at times be the best strategy. However, the re-filing option may not always be available, such as when the H-1B cap for the fiscal year has already been reached or the beneficiary’s nonimmigrant status has ended and consular processing would be problematic for whatever reason.

This blog will discuss the advantages and disadvantages of administrative review over judicial review.

Advantages of Seeking Administrative Review

Filing Form I-290B is more administratively convenient, efficient and less costly for the client. If the USCIS has made an obvious error, requesting that the USCIS either reopen or reconsider or do both may be an effective and simple strategy. For example, if an H-1B is erroneously denied without an RFE or NOID, and it was clearly an error, the filing a motion to reopen may make more sense over judicial review.

In the event that the petition has been denied on substantive grounds, filing an appeal to the AAO allows one to supplement the record by providing additional evidence such as a more detailed expert evaluation. The process is less formal than going to federal court. Writing the brief in support of the appeal or motion is an extension of what was already said in the response to the Request for Evidence prior to denial, although the new brief must make new and creative arguments to overcome the denial.

Even when the intention is to file an appeal on Form I-1290B, the official who made the initial decision, according to agency regulation, will first review the appeal and determine whether to take favorable action and grant the benefit request. This process is called “initial field review.” Thus, every appeal is first treated as a motion to reopen or reconsider. There are many occasions where a case based on an egregious denial can be reopened and reversed without going through the AAO.

There is nothing to lose and a chance of a favorable result – the AAO could either outright reverse a denial or remand back to the USCIS Service Center, which in turn, could issue another RFE. If the AAO dismisses the appeal, one can still seek review in federal court.

Disadvantages of Seeking Administrative Review

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. With respect to L-1 petitions, the AAO dismissed 181 appeals, sustained only 15 and remanded 6.

The process is also not expeditious. If the beneficiary is already in the US and does not have another underlying nonimmigrant status, he/she will start accruing unlawful presence for purposes of triggering the 3/10 year bar upon the denial of the request for change or extension of status. If the individual’s appeal is not successful after 180 days of unlawful presence have accrued, the beneficiary will be subject to the bars upon departing the US.  (If the individual’s appeal is successful, any related application for change of status or extension of stay is likely to be reopened on Service motion following the granting of the petition, but one cannot know for sure in advance whether this will happen.)

The AAO may not just affirm the USCIS denial, but may also improve upon it by providing better reasoning or even affirming for different or additional reasons. This would render it more difficult to seek judicial review.

Advantages of Seeking Judicial Review

The case is reviewed by a judge who is not part of the USCIS and is not influenced by its prevailing policy as an adjudicator within the AAO is.

There may also be an opportunity to have the case resolved with an Assistant US Attorney who may advise his/her client, the USCIS, to reverse the decision rather than fight it out in court.

If the plaintiff prevails, the attorney may seek fees under the Equal Access to Justice Act.

One can ask for extraordinary remedies through a preliminary injunction (or temporary restraining order followed by a preliminary injunction) to maintain the nonimmigrant status of the beneficiary during the pendency of the matter, or at least prevent the beneficiary from accruing unlawful presence during the pendency of the matter.

Moreover, if an NTA is issued upon the denial of petition, then one potential advantage in federal court litigation is to ask the court in the preliminary injunction to restore the status of the beneficiary, which could then be grounds for termination of the removal proceedings. It should be noted that business immigration attorneys will also need to either hone in or develop their litigation skills for beneficiaries who are placed in removal proceedings, which was discussed in our previous blog, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy.” Attorneys will need to simultaneously navigate the removal process while challenging the denial of the underlying petition.

In a few cases, the beneficiary has been able to establish standing as a plaintiff in litigation involving nonimmigrant visas. See e.g., Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016). In the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

Disadvantages of Seeking Judicial Review

Seeking judicial review can be far more expensive and time consuming. In addition, a federal court may exercise a more deferential standard, where under the Administrative Appeal Act (APA) a denial may be set aside only if  it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). Factual findings may be set aside by a federal court only if “unsupported by substantial evidence”—which is not quite the same thing as review for “clear error” as in appellate review of a lower court’s fact-finding, but is still far from de novo review. See 5 U.S.C. § 706(2)(E); Dickinson v. Zurko, 527 U.S. 150 (1999).  The AAO, on the other hand, can undertake a de novo review of all issues of fact, law, policy, and discretion, and can also address new issues that were not addressed in the prior decision. See AAO Practice Manual, Chapter 3 Appeals.

New evidence cannot be introduced into the record.

Some employers also fear government retaliation, although this may be anecdotal and not necessarily official policy. Employers also are shy about unwanted publicity when they become plaintiffs.

The stakes have never been higher for employment-based immigration. With the very real threat of deportation looming, practitioners and employers alike must weigh the benefits and risks with any of these options when seeking review of a denial. For some, a motion to reopen and reconsider may be sufficient for a more obvious error. Others may wish to resolve a recurring, systemic issue by seeking judicial review in a district court. Regardless, it is clear that the role of the immigration practitioner, especially those practicing business immigration, must be prepared to increasingly litigate these petitions in order to prevent further carnage of the existing immigration system.

Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3).  A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now  recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017.  We previously advocated for this outcome here, here and here, and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. Some I-485 applications have been pending for more than a decade, such as those in the class of July 2007, after the employment second (EB-2) and third preferences (EB-3) for India became current and then retrogressed. Even in the Trump era, I-485 applications  filed are likely to remain pending for over 180 days as the beneficiary will be scheduled for personal interviews at the local USCIS office.   This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer. INA 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice of the USCIS’s intent to revoke?

Matter of V-S-G-Inc. recognizes that a beneficiary who has ported is within the statute’s zone of interests following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects.    Courts have agreed that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS.  The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-485 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

The AAO in Matter of V-S-G- while endorsing the holdings in Mantena v. Johnson and Kurupati v. USCIS, disagreed with the Seventh Circuit’s holding in in Musunuru v. Lynch. In Musunuru, while recognizing the beneficiary of an approved I-140 petition as an affected party,   adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

In a prior blog, I had argued against the holding in Musumuru that there is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

I am glad that the AAO in Matter of V-S-G- agrees with this position. The AAO correctly noted, “The new employer did not pay for the filing, is not responsible for maintaining the petition, is not liable for the original petitioner’s compliance or malfeasance associated with it, and cannot withdraw the petition if it no longer requires the beneficiary’s services. Nor can the new employer prevent the beneficiary from porting to yet another employer (as happened here).” The fact that the new employer has to sign an I-485J Supplement J does not give it more interests in the original employer’s petition. The new employer would in any event need to provide a letter confirming the new job offer. Form I-485J merely captures the same information that the new employer would provide in a letter relating to the job offer.

While the outcome in Matter of V-S-G- is positive for beneficiaries who have ported and who are entitled to notification, it did not go far enough. Matter of V-S-G- only recognized the beneficiary as an affected party in cases where he or she has exercised portability under INA 204(j). The AAO disagreed with the Sixth Circuit’s holding in Patel v. USCIS, which held that the beneficiary of an I-140 petition even outside the porting context had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b), according to the Sixth Circuit in Patel, makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. While a pending I-485 may bolster the beneficiary’s interest in an I-140, it is not necessary. There exist old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, an even older 1984 case, Gladysz v. Donovan,  provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The final Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Workers rule (“High Skilled Worker Rule”), which took effect on January 17, 2017, did not address notice and standing for I-140 beneficiaries under INA 204(j). Matter of V-S-G- now fills this gap. 8 CFR 205.1(b) and 205.2(b) and (c), which provide that automatic and notice-based revocations go solely to the petitioner, are no longer applicable when beneficiaries have pending I-485 applications under INA 204(j). The USCIS has instructed that revocation notices be sent to both the petitioner and beneficiary. The USCIS, however, does caution that when sending notification, certain non-public information cannot be shared with both parties such as the petitioner’s non-public financial information, including federal tax returns or information about I-140s being filed on behalf of multiple beneficiaries. Under these circumstances, the beneficiary is supposed to get more generalized information. Whether this will be advantageous to the beneficiary who is provided modified information for purposes of rebutting an intention to revoke an I-140 petition remains to be seen. However, it would be a ground for appeal to the beneficiary whose I-140 was denied because he or she did not get sufficient information in order to provide an effective rebuttal. Still, the examples given in the Policy Memorandum under which the USCIS can revoke an approved I-140 are broad and under the following headings: material error in approving the petition; fraud or willful misrepresentation of material fact; lack of a bona fide job offer; adverse new information (from a site visit or adjustment interview; and invalidation of a labor certification. One can see this as an invitation for USCIS examiners to issue more NOIRs of approved I-140 petitions especially under the Trump administration, which has sought to curb or slow down legal immigration by imposing mandatory adjustment interviews and increasing site visits.

Matter of V-S-G and the accompanying policy guidance only deal with notification to beneficiaries who have approved I-140 petitions, which the USCIS seeks to revoke. It does not deal with beneficiaries who are porting off unadjudicated I-140 petitions and concurrently filed pending I-485 applications. 8 CFR 245.25 of the High Skilled Worker Rule clarifies and codifies long standing policies regarding how a beneficiary may port under INA 204(j). With respect to porting off an unadjudicated I-140 petition, 8 CFR 245.25(a)(2)(ii)(B) clearly provides for this by stating that the I-140 must still ultimately be approved by demonstrating that it was approvable at the time of filing and until the I-485 was pending for 180 days. The rule insists that it must still be demonstrated that the original petitioner had the ability to pay the proffered wage at the time of filing the I-140 petition, but the original petitioner need not continue to show its ability to pay after filing and until the beneficiary obtains permanent residency. This makes sense since once the beneficiary has ported, the original petitioning employer should not be required to demonstrate its continued ability to pay the proffered wage after the filing of the I-140 petition and once the 180 days since the filing of the I-485 have passed.

Unfortunately, Matter of V-S-G- and the accompanying guidance fail to instruct USCIS on how to notify beneficiaries when the I-140 has not yet been approved, but the beneficiary has exercised portability under INA 204(j). Pursuant to Matter of V-S-G, the beneficiary has a legitimate interest in an unadjudicated I-140 too, and must be notified through a Request for Evidence (RFE) that is usually only sent to the employer.  Accordingly, beneficiaries who have ported off an unadjudicated I-140 must insist on being notified regarding any RFE that may be sent to the employer and to be given the opportunity to respond to the RFE. If the relationship has not become antagonistic, the original employer may still respond to the RFE, even if the employer does not intend to employ the beneficiary upon acquiring permanent residency, and notify the USCIS that the beneficiary has or may be porting under 204(j) but is seeing to have the I-140 approved pursuant to 8 CFR 245.25(a)(2)(ii)(B). If the original employer has decided to not respond to the RFE, the USCIS must still give the beneficiary an opportunity to respond to the RFE in the same was as it has been instructed to do under Matter of  V-S-G- with regards to an NOIR of an approved I-140 petition.

Beneficiaries have not been provided the same rights as employers in the I-140 petitioning process. Matter of V-S-G- following court decisions now recognize that an AC 21 beneficiary must be given an opportunity to be heard when the approved I-140 petition is in jeopardy. At the same time, the guidance accompanying Matter of V-S-G- could also incentivize USCIS officers to issue more NOIRs of approved I-140 petitions, although such notices would have to be provided to the original petitioner and to the beneficiary. While this is a significant first step, beneficiaries of employer-filed petitions must continue to advance their legitimate right to be heard even in other contexts, such as when the I-140 is still not yet approved or even when there is no pending I-485 application under INA 204(j).