By: Michael Phulwani, Esq., David H. Nachman, Esq., and Ludka Zimovcak, Esq.
When a USCIS Service Center denies an employment-based visa petition, is it prudent to recommend to a petitioning employer to appeal to the AAO? Not if you have the option of filing a new petition. But there are many situations where refiling may not be an option. For example, where an immigrant visa petition must be approved to preserve a Beneficiary’s priority date or where a nonimmigrant visa petition must be approved in order for the Beneficiary to be counted against the H-1B cap. In these cases, a refiling may not achieve a client’s goals.
The following are some of the advantages and disadvantages to consider when considering whether or not to file an Appeal of a case with the AAO:
1. An Appeal can provide an opportunity to supplement the administrative record. If, based on the Service Center’s denial, it may be reasonable for the petitioning employer to conclude that the record is weak. In this case, administrative review process can provide additional evidence that a petitioning employer has met the requirements for the relevant visa classification. If the petitioning employer files the case in court, the case will be based on the record as it existed when the Service Center denied the petition.
2. An Appeal may prompt USCIS to approve the petition. If an adverse decision issue and the petitioning employer files an Appeal to the AAO, agency regulations require the official who made the initial decision to review that decision and decide whether to consider taking a “favorable action.” If, upon review, the official decides to approve the petition, the petitioning employer’s appeal can be treated as a motion to reopen or reconsider (whichever is applicable). If the petitioning employer decides to file an AAO Appeal it is critical for the petitioning employer to remember that the deadline is within 30 days (or 33 days if it received the denial by mail) of the decision date.
1. Bad odds. In Fiscal Year 2014, the AAO dismissed (i.e. upheld denials of) 95% of its appeals on the merits from H-1B petition denials and 86% of its appeals on the merits from L-1 petition denials. Since the filing fee is currently $630, with a proposed increase to $675, an employer would understandably be concerned about the high cost of filing as compared with the low success rate.
2. Prospect of an even worse decision. The AAO may affirm the denial for a different reason than the Service Center—a reason which may be more difficult to overcome than the reason(s) set forth in the initial decision.
3. Not expeditious. While the Service Center is supposed to forward an Appeal to the AAO within 45 days of receipt, such transmittals often take longer. The AAO’s processing time, which is currently within six months, starts on the date the AAO receives the file.
In conclusion, unless a petitioning employer needs to supplement the administrative record, a petitioning employer needs should seriously consider filing suit instead. Some cases have received approval notices shortly after serving complaints on USCIS. In cases where USCIS won’t budge a petitioning employer needs will have the opportunity to present a case to a decision-maker who is independent of, rather than part of, USCIS.
The Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., immigration lawyers and immigration attorneys continue to assist clients, their families and HR Managers with a variety of U.S. immigration and nationality issues including the preparation of immigrant and nonimmigrant visas. If we can be of any assistance, please feel free to e-mail us at firstname.lastname@example.org or to call our offices at 201-670-0006 (x107).