So you got your H-1B denied

If you read the denial and feel you ARE being denied on grounds that are flimsy and for documents already submitted—-we feel your pain. Unfortunately Officers are not even reading petitions and denying it with stock material that the officer is simply copying and pasting.  The problem is there is no leadership at the top, and each officer is left to deal with 4 words given by Trump: Buy American, Hire American.

We have to deal with this unfortunately. Please note that NONE of these remedies provide status to your employee, and your employee NEEDS to maintain status if he/she is in the US independently.  He/She can also go back to their home country and not accrue any unlawful presence. If the remedy is successful, they can come in with their H-1B visa.

The BEST WAY to deal with this is to sue Citizenship and Immigration Service in federal court. The court will:

  • Look at your initial filing
  • Request for Evidence
  • Reply to your Request for Evidence

If the reply to the Request for Evidence looks good (hereinafter referred to as the Record) the Court will rule in your favor.  Note though that you cannot add any other material to the record

The Positives in this scenario are:

 

  • Citizenship and Immigration Service has not been sued for business immigration before and does not know how to deal with it
  • The Citizenship and Immigration Service does NOT have the resources to hire their own expert, so your experts rule.
  • The venue is quite liberal, in CA and VT

Thus if your record is good: Multiple experts, letter from competitors, end client attestations, etc.  re recommend suing Citizenship and Immigration Service in federal court. If you choose this, please call us for costs/fees

Note: there is no time limit for this action.

 

The NOT SO GOOD WAY is following what the denial recommends, ie file a Motion to Reopen and reconsider/Appeal to the Administrative Appeals Unit (AAO)  Please note that this should be only attempted if your record is not good.  You can add other expert opinions, etc.

Our experience and American Immigration Lawyer’s Association recommendation suggest that these can be useless, since most AAO is rubber stamping the Citizenship and Immigration Service decision. These have to be filed within one month of the denial.  These take a long time, 2-4 years  for adjudication, during which the employee needs to be in status if present in the United States.  You cannot pursue Federal Court (as in above) unless this process ends.

 

We really think its better to refile the case with next year’s quota and more documents, but of course the decision is yours.

 

For more information, contact Banerjee & Associates