Gee & Zhang Immigration E-Blast 12/23/19

Gee & Zhang E-Blast:

A number of the academic research organizations have observed that under the Trump administration the USCIS has issued significantly more Request For Evidence (REE) and denied more H and L petitions than previous administrations. In fact, we have observed that a number of H and L cases that had previously been approved by the USCIS have surprisingly been issued RFE’s when the employer and the alien were seeking the extension in the precise same job involved with the original application. It appears the government is re adjudicating some of the previously approved applications. Without additional personnel the actions of the USCIS in re adjudicating and issuing significantly more RFE’s and denials has caused the processing of various nonimmigrant visa applications to become severely backlogged. Where cases had previously been adjudicated within 3 to 6 months, we are now observing that the applications are taking 9 to 12. Unless there is a change in government policies the length of the processing will likely be extended even longer in the future.

Because we are a country of laws and regulations, all actions by the USCIS is subject to appeals to the Administrative Appeals Office in Washington DC. Unfortunately, we are finding that the AAO is also severely overwhelmed by the number of appeals and because they are severely understaffed the processing time on appeals are taking more than a year to be adjudicated. Needless to say, the length of time on the appeal is not conducive to sound business practices so alternative strategies have been sought to get adjudications more expeditiously.

I am pleased to advise that James Cypert has been able to assist one of our clients in getting approval of his L-l nonimmigrant petition in less than three months by filing a lawsuit in federal court arguing that the USCIS denial decision was arbitrary and contrary to the evidence and record of the case. Upon review of the lawsuit and petition, the USCIS reversed its prior denial and approved the petition within 30 days of the filing of the federal court petition. Had the USCIS not approved the petition and the court ruled in favor of our client, it is likely that we would have also recovered EAJA, Equal Access to Justice act. Legal fees to be paid out of the USCIS budget had the litigation proceeded to the court and the petitioner won. However, the USCIS upon receipt of our petition and realizing that we had a very valid case approved the petition and mooted the legal issue negating our opportunity of seeking EAJA legal fees.

While our clients are reluctant to litigate against the government, particularly when they are seeking a benefit from that agency, but this is the U.S. legal system. Giving an individual the right to sue the government is a means to provide a check and balance to ensure that the government officials are not oppressive and overbearing in their decisionmaking. Congress realizes that individuals do not have the financial wherewithal undertake legal matters against the government so in their infinite wisdom, Congress has enacted legislation to provide for legal compensation for certain litigants who prevail in their lawsuits against the government. We are pleased that we were able to assist our client in gaining approval of his L-l intracompany transferee visa notwithstanding the USCIS s arbitrary RFE and denial. Also, please note that the approval was achieved in a much shorter time because the client permitted us to institute a lawsuit against the USCIS. When our clients articulated to us their business needs, we are frequently able to outline a plan or program that legally achieves their goals and objectives. Unfortunately, recently we have had to recommend that our clients consider litigation in order to achieve their goals and objectives.