CFGI Mentioned – “Should You Sue Over Delayed or Denied Immigration Cases?”

6/19/2018
SHRM


“A panel of immigration attorneys recommended companies unhappy with visa processing delays and petition denials bypass the agency appellate process and sue the government in district court. 

“The panelists also advocated that organizations band together and file lawsuits challenging government policy changes such as the Feb. 22 U.S. Citizenship and Immigration Services (USCIS) memo that requires H-1B employers who send their workers to third-party worksites submit additional detailed documents such as worker itineraries.

“‘We’re actually in possession of powers you didn't know about that we can use to advocate for our companies and our employees,’ said Sameer Khedekar, a partner with the Pearl Law Group…speaking to attendees of the Council for Global Immigration's 2018 Symposium recently held in Arlington, Va.

“‘It's important for us to not only think about challenging individual cases in court, but also to realize we have the power to try to effectuate some change in how adjudicators are reviewing cases overall,’ said Hendrik Pretorius, an attorney also with Pearl Law Group. ‘When memos come out making some substantive rule change and they haven't followed the proper rulemaking procedures, it's helpful to have various organizations come together to provide affidavits or act as joint plaintiffs on cases that can help the entire business community.’

“…Employers can also challenge individual case denials. ‘The Trump administration has clearly had an impact on adjudications, and we're all having to deal with huge increases in requests for evidence and delays as a result, and denials that we have to contend with,’ [Pretorius] said.

“…Khedekar explained that when a visa petition is denied, ‘you can either forget about it, file a motion to reopen the case, or appeal up the chain to the USCIS Administrative Appeals Office…’

“…Jonathan Wasden, formerly an attorney with the Administrative Appeals Office, and currently the lead lawyer in a lawsuit calling for an injunction of the Feb. 22 USCIS memo, said that administrative remedies do not have to be exhausted for employment immigration cases, and that companies are better off going straight to court.

“…If organizations take their denied case to district court, USCIS must defend any errors in their decision, Wasden said. They can't supplement or modify the case, which can be done during the agency appeals process.

“‘While you're suing, the court can protect any adverse impact from the agency decision and order that the foreign worker receives benefits, legal presence and lawful employment during the pendency of the case,’ he said.

“…The same theory holds true for mandamus filings challenging processing delays. Mandamus lawsuits can be used to challenge delays in the adjudication of visa applications and petitions by compelling the agency to act where they have a legal duty to do so and have not.

“…Pretorius added that if more companies were filing mandamus challenges, it might start putting pressure on the agency.”

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