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APA litigation and Mandamus filings general information

Filing a Federal Lawsuit under the Administrative Procedure Act (“APA”) is one way in which employers/individuals can challenge unlawful agency action.  Similarly, a Mandamus action can be filed where the agency fails to act within a reasonable time.

Exhaustion Requirement

Filing suit in Federal Court does not require an employer/individual to exhaust administrative remedies such as filing a Motion to Re-open/Re-consider or an Appeal.  If a case is delayed or denied employers/individuals can go straight to Federal Court and bring an action under the APA.

So what type of cases can be filed in Federal Court?

Cases that are suitable for filing in Federal Court can broadly be put into 3 categories, namely:

  1. Unreasonably delayed cases– these are cases that are not being adjudicated within a reasonable amount of time. Congress intended that non-immigrant petitions should be adjudicated within 30 days and Immigrant petitions within 180 days.  Once a case is outside of these timeframes it is possible to file a Federal Lawsuit.  For example, if an I-526 Petition (EB-5) filing has been pending for more than 180 days we would recommend filing a Lawsuit given that the current processing time can be in excess of 4 years.  For an EB-5 candidate, there is no premium processing and an expedite request is unlikely to be approved so filing a Federal Lawsuit is the only option to obtain a faster adjudication of your petition.

 

  1. Partial approvals/Partial denials- A perfect example of this would be an H-1B petition that is requested for 3 years, but that is only approved for 6 months. While this is approval, it is still only a partial approval and is also a denial of 2 years and 6 months.  The APA requires USCIS to provide a written explanation for the denial and this includes partial denials.  However, when USCIS approves a case for 6 months they always fail to provide a written explanation for the denial of the remaining requested time.  All an employer ever receives is an approval notice, showing the approved validity dates.  In order to comply with the APA, USCIS should issue a written decision explaining why they have denied the remaining time.  The reason USCIS doesn’t do this is simply that there is no valid justification for shortening the validity dates.

 

  1. Wrongly denied cases– This could apply to any type of case where USCIS has failed to follow the law. For example, an H-1B, where USCIS claims that the position is not a specialty occupation, despite having approved the candidate for an H-1B previously or despite overwhelming evidence that the position requires the application of specialized knowledge.

What are the benefits of suing USCIS?

First and foremost is to challenge the individual delay or denial with the view to getting the decision overturned. By filing a Federal Lawsuit, you are forcing USCIS to justify their decision, which it is highly unlikely they will be able to do.    In most cases where a Federal Lawsuit has been filed, USCIS has chosen to avoid litigation and has issued an approval.  This is particularly true in delayed cases and partial approvals.

Looking at the bigger picture you are demonstrating that you are prepared to fight USCIS, in the event, that they misapply the law.  USCIS is known for being afraid of litigation and is likely to avoid challenging Employers who are known to sue. By standing up to USCIS now you will likely receive more favorable treatment in the future.  Why?  Plain and simple, USCIS wants to avoid litigation at all costs.  If you have sued them once they take the view that you are more likely to sue them again.  As a result, USCIS is less likely to challenge employers who take a stand.

Furthermore, the more employers that show themselves willing to file Federal Lawsuits, the more likely USCIS is to follow the law and adjudicate cases fairly.

How we can help

At Patel Law Group, we are committed to helping individuals and employers achieve their Immigration goals and strongly believe that suing USCIS will be effective tool for you to obtain the result that you deserve.

As well as having a strong Immigration team we also have experienced Federal Litigators who are ready to fight on your behalf.  If you are interested in learning more about filing a Federal Lawsuit please e-mail our Senior Immigration Attorney, Chris Prescott at cprescott@patellegal.com.

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