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What to do when appeals fail

Atty. Paul Choi

(PAUL CHOI is an immigration attorney, a frequent author of articles on immigration law and a professor of law in California. He will answer all immigration questions for free. Address questions to pchoi@pchoilaw.com or to Paul Choi, 16000 Ventura Blvd, Ste. 1201, Encino, CA. 91436 or at 818 714-2226. PHILIP ABRAMOWITZ is the administrator of the law office. He can be reached at 818 324-8110.)

Question  I am an accountant and businessman with twenty years’ experience from the Philippines.  I came to the U.S. as a tourist last year and a garment business filed an H-1B visa petition for me. The USCIS denied the petition saying that the job offered to me by the company was not an accountant job and  that I was not considered a professional.  My attorney filed an appeal to the Administrative Appeals Office in Washington last year and I just received a decision from that office also denying my appeal.  My attorney said that there is nothing else I can do as the decision is now final.  Is this true?  My employer really wants to employ me as an accountant in his company but he does not know what to do.  Is there any hope for my case?  Do I have to leave the country?

Answer:   The Immigration Service has created an internal review process for most petitions.  Depending upon the type of petition that is being reviewed, an appeal can be filed with either the Administrative Appeals Office or the Board of Immigration Appeals.  Appeals filed from denials of petitions such as those seeking  L-1 or H-1 visas are filed with the AAO while appeals from denials of I-130 family immigrant visa petitions are filed with the Board of Immigration Appeals.  Once an appeal is filed, the case is transferred to the appropriate reviewing office for consideration and a decision.  The appealing party has the opportunity to state the basis for the appeal and can submit a legal memorandum explaining both the factual and legal basis for the appeal. The same goes for decisions of an immigration judge in removal or deportation proceedings.  If the Immigration Service misunderstood or misapplied the facts, this can be brought out in the appeal.  If the Service misapplied the law, this can also be pointed out in the appeal brief.   The downside of most appeals is the time that is consumed by such a process.  It is not unusual for an administrative appeal from a denial of an H-1B petition to take a year or more to be concluded.  Moreover, the filing of an appeal does not automatically grant or extend the applicant’s legal status in this country.

It is well recognized that administrative appeals within the Immigration Service are not often granted.  Although the AAO or the Board of Immigration Appeals does consider each appeal separately and does provide a written decision discussing and supporting its reasoning, unless it can be clearly shown that the Immigration Service made an error affecting the outcome of the petition, the appeal will be denied.   Once the AAO or the BIA renders its written decision the matter is considered administratively final and there is no further appeal that can be taken within the Immigration Service.  However, this does not mean that there is no further relief available to the aggrieved party.

If the appealing party believes that his petition is meritorious and is dissatisfied with the outcome of the appeal, relief can still be available through further review by a U.S. District Court.   Under established Federal Law, many decisions by administrative agencies, such as the U.S. Immigration Service, are reviewable in Federal Court through a procedure known as a Complaint for Declaratory Relief.   With an action for Declaratory Relief, the appealing party can file an action against the U.S. agency that rendered an adverse decision.  Instead of seeking monetary damages from the government, the action seeks a ruling from a Federal Judge when there is a dispute regarding a eligibility for a benefit under the law.  In other words, the plaintiff in an action for declaratory relief, is in essence, seeking a declaration from the judge as to his rights under the law.  In your case, an action for declaratory relief after a denial of an H-1B petition filed for an accountant, would seek a decision from a judge whether the applicant qualified for an H-1B visa as an accountant.  If the petitioning party succeeds in the action, he would receive an order from the judge declaring him eligible for H-1B status and the decision of the immigration service would be overturned.  Although in the past these types of lawsuits were not very common, nowadays, with the USCIS becoming stricter, more and more persons are resorting to Declaratory Relief actions when normal administrative appeals fail.

Although it is certainly never guaranteed that a declaratory relief action will always result in an approval, it is interesting to note that should the aggrieved party win the lawsuit, under a law called the Equal Access to Justice Act, he may seek reimbursement for his attorney fees and court costs from the U.S. government.  This is sometimes reason for the Immigration Service to take a declaratory relief action seriously and may provide incentive for the government to settle a case before a decision is rendered by a judge and it becomes liable for attorney fees.

(PAUL CHOI is happy to answer all questions regarding immigration and naturalization for FREE. Address questions to pchoi@pchoilaw.com or 818 714-2226) 

 

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