Perhaps the most important tool in the arsenal of an Immigration Attorney in 2020 is the ability to litigate poorly reasoned, extra-regulatory, or just plain wrong decisions by U.S. Citizenship and Immigration Services (USCIS). Litigation against USCIS has increased greatly in the last three years due largely to the efforts of AILA’s Administration Litigation Task Force which has trained countless immigration attorneys on how to seek redress in federal court, especially in business-related cases. AILA and the task force members have also filed high-impact litigation against USCIS.
AILA has become very concerned over the course of the last three years about the denial rate of H-1B visas, particularly those targeted to the issue of specialty occupation, like those for market research analysts and similar positions. AILA, through our new Director of Litigation, Jesse Bless, and along with Mary Kenney and Leslie Dellon from the American Immigration Council, and AILA members Jeff Joseph and I are representing the Plaintiffs in a Class Action Lawsuit MadKudu Inc. et al v. U.S. Citizenship and Immigration Services (5:20-cv-02653-SVK, ND CA).
In MadKudu, our two plaintiffs and putative class representatives for employers with denied H-1B petitions for Market Research Analysts boldly stepped forward to challenge the USICS’s erroneous interpretation of the law. As many AILA members know, the biggest impediment to litigating fixes to the individual cases is the willingness of the employer to step forward, for fear of retaliation. We know this is a myth and the reality is that USCIS does NOT retaliate against employers or individual applicants that bring challenges to their decisions. In fact, it is clear from our experience that USCIS frequently looks at those cases brought by counsel who litigates cases carefully before issuing any denial at all. Simply put, USCIS does not like to get sued. And, when litigation is filed often the result is not contested litigation, but a quick positive result: either the USCIS simply reopens the denial and sends a new Request for Evidence (RFE) to cover itself in issuing a new decision, or it frequently reopens sua sponte and approves the petition to avoid creating, for the agency, bad federal court precedent.
To no one’s surprise on our litigation team, USCIS has, in fact, now approved the petitions for our named plaintiffs: one was granted due to the employer’s refiling of the petition and USCIS reopened the previously denied petition for our other plaintiff without an RFE. While this will not affect our class action certification request, we believe that it should embolden similar employers to come forth and seek corrective action on their previously denied cases. Join our fight! Participation as a plaintiff in this litigation does not cost the individual employer any time or treasure, and it will most certainly help our team convince the Court to issue a decision in this matter that will stop USCIS from issuing blanket denials to this professional position and start following the plain language of the statute and regulations. If you have an employer interested in participating in this litigation, please email us at H-1Boutreach@immcouncil.org as soon as you can, and we can work with you to speak with your client’s representative, explain the litigation, and add them as a plaintiff going forward, with as many of their relevant cases as they may want to bring.
The only way to stop USCIS from continuing to rewrite immigration law through RFE and denial is to challenge them boldly, fiercely, and publicly in the federal courts. Stand with us. Join us in the fight.