Even before COVID-19, companies were facing an increasingly challenging immigration environment as the Trump administration has tightened eligibility for common visa categories for high-skilled workers over the past three years.

Denial rates for immigration petitions have now reached record levels. The pandemic has led to entry restrictions on travelers from more than 30 countries, and a worldwide ban on immigrant visa applicants from entering the U.S. On June 22, the White House issued a proclamation expanding the entry ban to nonimmigrants, including certain categories of temporary work visas.

This environment significantly increases uncertainty and raises the risk for employees whose immigration petitions in the U.S. are denied, as they are more likely to face prolonged entry restrictions.

It is more important than ever for employers whose immigration petitions are denied to explore all legal options for preventing the departure of foreign national employees. This article looks at those options and why employers may change their traditional strategies for responding to denials.

Options for Employers When a Petition is Denied

Typically, when an employer receives a denial on an employee’s petition, such as an H-1B extension or L-1 extension, the most expedient and reliable strategy is for the employer to refile from within the U.S., if the employee’s previous status is still valid, or to have the employee depart the U.S. while the employer refiles the petition.

At this time, with numerous travel bans in place, an entry ban on immigrant visa applicants and new restrictions that include the suspension on entry of H-1B and L-1 visa seekers abroad as of June 24, employers should think twice before advising, as a strategy, that an employee leave the U.S. while their petition is refiled.

Since so many restrictions may affect reentry, and since the possibility of additional restrictions exists, employers need to reexamine their traditional approach to a U.S. Citizenship and Immigration Services denial. Employers that want to challenge a denial are left with the following three options.

  • Motion to Reopen. An employer may file a motion to reopen with the USCIS office that issued the denial decision when the employer believes USCIS incorrectly applied the law/facts or policy to the petition.
  • Motion to Reconsider. An employer may file this motion with the USCIS office that issued the denial decision when new facts or evidence is available to support the petition and overturn the denial.
  • Appeal. An appeal is filed when the employer wants to directly challenge the USCIS decision and seeks review by the Administrative Appeals Office, or AAO, using either or both of the reasons above.

Employers should carefully consider their choice, since they cannot pursue all options concurrently.

Most motions or appeals must be filed within 30 days of the denial notice by submitting Form I-290B, Notice of Appeal or Motion. A motion to reopen/reconsider is only sent to the USCIS office that issued the denial to see if it will overturn its original denial.

If the employer selects the option to appeal the decision to the AAO, they get two attempts at getting the denial overturned. If the appeal option is chosen, the case is first sent back to the USCIS office that issued the denial to see whether it will change its decision.

If the original office confirms its denial, USCIS then forwards the appeal on to the AAO. The AAO will either confirm the denial, overturn the denial or remand the case back to USCIS with specific guidance.

It is important for employers to understand that filing a motion or appeal does not maintain an employee’s underlying status or enable the employee to continue working while the case is under review.

In an effort to maintain an employee’s underlying status while seeking one of the above options, the employer may need to file a new petition — e.g., if the employee is still in legal status and an extension petition may be filed in a timely manner — or perhaps file another petition with USCIS, even if they have to request that USCIS use its discretion to forgive a late filing after the employee’s status has expired.

Why Employers Declined to Pursue These Strategies in the Past

In the past, employers were hesitant to file an appeal or motion to reopen/reconsider for a multitude of reasons. Here are several reasons:

Motions and appeals had a low success rate. In H-1B cases,[1] AAO appeals were successful less than 3.7% of the time in each of fiscal years 2015, 2016 and 2017. Employers lacked strong federal cases to support their legal arguments. In contrast, in fiscal years 2018 and 2019, the AAO sustained appeals in H-1B cases 18% of the time, not including remands.

Motions and appeals have long timelines. Motions can take more than four months for a decision and appeals can take over 6 months.

Filing an appeal with the AAO or a motion to reopen/reconsider does not grant the foreign national beneficiary any status or work authorization.

There are high costs associated with filing a motion or an appeal, including additional legal fees and filing fees.

The strategy of quickly refiling the petition under premium processing was usually the fastest and most predictable option. After approval, the foreign national employee would exit the U.S., apply for a new visa at a consulate in their home country and reenter the U.S. to quickly overcome the previous denial and reestablish legal work authorization in the U.S.

Reconsidering Options in the Current Environment

For the reasons stated above, fighting an adverse decision was not a very attractive option for an employer hoping to immediately secure employment, or to continue employment, for one of their employees. This also explains why the most expedient way to overcome a denial has typically been to refile the petition under premium processing and then have the foreign national employee return to the U.S. with the new approval to resume employment in lawful status.

Then, COVID-19 emerged and travel halted. Travel restrictions were imposed, and all U.S. consulates and embassies suspended routine visa processing. With these changes, companies must reconsider their post-decision playbook. No longer may an employer facing denial quickly, and with some predictability, send an employee outside the U.S. to await approval of a new petition.

While this strategy was largely been successful in recent years as second petitions were often approved after an initial denial, this approach is much less predictable today. Due to ongoing travel bans and closed consulates, it is much more uncertain whether employees will be able to reenter the U.S. With so much uncertainty around the ability of employees being able to return to the U.S., companies need to give greater consideration to fighting petition denials.

As sponsoring employers know, there has been a sharp increase in requests for evidence and denials in recent years. Between fiscal year 2015 and fiscal year 2018, the denial rate for new H-1B petitions quadrupled from 6% to 24% according to a policy brief by the National Foundation for American Policy,[2] based on data obtained from the USCIS H-1B employer data hub.[3]

With the substantial increase in denials, some employers began to question the legality of USCIS decisions and challenge denials via litigation. Recent court decisions provide hope, specifically to H-1B employers who seek an alternative way to retain foreign talent in the U.S.

For example, there is favorable new persuasive case law regarding the definition of a specialty occupation. Last August, in Relx Inc. v. Baran, the U.S. District Court for the District of Columbia reprimanded USCIS, stating that the immigration statute does not require that only one type of degree be accepted for a position to be considered specialized.[4]

In addition, USCIS recently agreed to a settlement in ITServe Alliance Inc. v. USCIS, which overturned restrictive policies that were being enforced against employers and their H-1B employees.[5] In the settlement, the government agrees to the following with respect to all H-1B petitions:

  • Rescind the 2018 contracts and itineraries memo, issued Feb. 22, 2018,[6] in its entirety by Aug. 18.
  • Abstain from applying Title 8, Section 214.2(i)(B) of the Code of Federal Regulation’s itinerary requirement to H-1B adjudications until the government provides further guidance.[7]

These positive results may encourage employers to pursue litigation following a denial, particularly when the denial is based on sudden policy changes that have reversed longstanding adjudication standards.

Action Plan for Employers Who Choose to Challenge Denials

Employers who are considering challenging a denial should take the following steps:

Understand the reason for denial. Was the law misapplied? Is there new evidence that could be provided that would result in an approval?

On the basis of the legal analysis, determine whether the employee has any other options to remain in the U.S. For example, is the employee also in the green card process and do they have work authorization via that avenue? Are they eligible to file for work authorization as a dependent spouse? Are they eligible for other visa categories?

If there are no other options, does the employer want to fight the adverse decision? Is the employer prepared to file a motion or appeal if it could result in the possibility of keeping that employee work authorized in the U.S.?

For the majority of nonimmigrant petition denials, an employer has only 30 days to appeal. Therefore, it is imperative that employers act quickly once they receive a denial, and they may even want to anticipate strategies before a denial.

In summary, if the denial decision will have a considerable impact on the business, employers may want to consider fighting back. The current policy environment means the stakes are higher than ever when an employee’s immigration petition is denied.

[1] USCIS and AAO Data for FY2019, AAO Appeal Adjudications, https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/AAO_Data_for_Publishing_Thru_FY19.pdf.

[2] National Foundation for American Policy, “H-1B Denial Rates: Analysis of H-1B Data for First Two Quarters of FY2019,” August 2019, https://nfap.com/wp-content/uploads/2019/08/H-1B-Denial-Rates-Analysis-of-H-1B-Data-for-First-Two-Quarters-of-FY-2019.NFAP-Policy-Brief.August-2019-1.pdf.

[3] U.S. Citizenship and Immigration Services, H-1B Employer Data Hub Files, https://www.uscis.gov/tools/reports-studies/h-1b-employer-data-hub-files.

[4] Relx Inc. v. Baran, 397 F. Supp. 3d 41, 54-55 (D.D.C. 2019).

[5] https://nfap.com/wp-content/uploads/2020/05/ITSERVE-SETTLEMENT-AGREEMENT-fully-executed_Redacted52020.pdf.

[6] U.S. Citizenship and Immigration Services, Policy Memorandum, PM-602-0114, June 17, 2020, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf.

[7] ITServe Alliance, Inc. v. Cissna , No. 1:18-cv-2350, slip op. at 43 (D.D.C. Mar. 10, 2020).

Lynn O’Brien is a Senior Associate and Kane Vongsavanh is an Associate in the McLean, Va., office of Berry Appleman & Leiden LLP.

This article was originally published on Law360.com on June 25, 2020.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.