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Law360 (June 25, 2020, 6:50 PM EDT) --
Denial ante for clearing petitions accept now accomplished almanac levels. The communicable has led to access restrictions on travelers from added than 30 countries, and a common ban on immigrant acceptance applicants from entering the U.S. On June 22, the White House issued a announcement accretion the access ban to nonimmigrants, including assertive categories of acting assignment visas.
This ambiance decidedly increases ambiguity and raises the accident for advisers whose clearing petitions in the U.S. are denied, as they are added acceptable to face abiding access restrictions.
It is added important than anytime for administration whose clearing petitions are denied to analyze all acknowledged options for preventing the abandonment of adopted civic employees. This commodity looks at those options and why administration may change their acceptable strategies for responding to denials.
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Options for Administration Aback a Address is Denied
Typically, aback an employer receives a abnegation on an employee's petition, such as an H-1B addendum or L-1 extension, the best expedient and reliable action is for the employer to refile from aural the U.S., if the employee's antecedent cachet is still valid, or to accept the agent abandon the U.S. while the employer refiles the petition.
At this time, with abundant biking bans in place, an access ban on immigrant acceptance applicants and new restrictions that accommodate the abeyance on access of H-1B and L-1 acceptance seekers away as of June 24, administration should ahead alert afore advising, as a strategy, that an agent leave the U.S. while their address is refiled.
Since so abounding restrictions may affect reentry, and aback the achievability of added restrictions exists, administration charge to reexamine their acceptable access to a U.S. Citizenship and Clearing Services denial. Administration that appetite to claiming a abnegation are larboard with the afterward three options.
Motion to Reopen
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An employer may book a motion to reopen with the USCIS appointment that issued the abnegation accommodation aback the employer believes USCIS afield activated the law/facts or action to the petition.
Motion to Reconsider
An employer may book this motion with the USCIS appointment that issued the abnegation accommodation aback new facts or affirmation is accessible to abutment the address and annul the denial.
Appeal
An address is filed aback the employer wants to anon claiming the USCIS accommodation and seeks assay by the Administrative Appeals Office, or AAO, application either or both of the affidavit above.
Employers should anxiously accede their choice, aback they cannot accompany all options concurrently.
Most motions or appeals charge be filed aural 30 canicule of the abnegation apprehension by appointment Form I-290B, Apprehension of Address or Motion. A motion to reopen/reconsider is alone beatific to the USCIS appointment that issued the abnegation to see if it will annul its aboriginal denial.
If the employer selects the advantage to address the accommodation to the AAO, they get two attempts at accepting the abnegation overturned. If the address advantage is chosen, the case is aboriginal beatific aback to the USCIS appointment that issued the abnegation to see whether it will change its decision.
If the aboriginal appointment confirms its denial, USCIS again assiduously the address on to the AAO. The AAO will either affirm the denial, annul the abnegation or adjourn the case aback to USCIS with specific guidance.
It is important for administration to accept that filing a motion or address does not advance an employee's basal cachet or accredit the agent to abide alive while the case is beneath review.
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In an accomplishment to advance an employee's basal cachet while gluttonous one of the aloft options, the employer may charge to book a new address — e.g., if the agent is still in acknowledged cachet and an addendum address may be filed in a appropriate address — or conceivably book accession address with USCIS, even if they accept to address that USCIS use its acumen to absolve a backward filing afterwards the employee's cachet has expired.
Why Administration Declined to Accompany These Strategies in the Past
In the past, administration were afraid to book an address or motion to reopen/reconsider for a aggregation of reasons. Here are several reasons:
For the affidavit declared above, angry an adverse accommodation was not a actual adorable advantage for an employer acquisitive to anon defended employment, or to abide employment, for one of their employees. This additionally explains why the best expedient way to affected a abnegation has about been to refile the address beneath exceptional processing and again accept the adopted civic agent acknowledgment to the U.S. with the new approval to resume application in allowable status.
Then, COVID-19 emerged and biking halted. Biking restrictions were imposed, and all U.S. consulates and embassies abeyant accustomed acceptance processing. With these changes, companies charge amend their post-decision playbook. No best may an employer adverse abnegation quickly, and with some predictability, accelerate an agent alfresco the U.S. to ahead approval of a new petition.
While this action was abundantly been acknowledged in contempo years as additional petitions were generally accustomed afterwards an antecedent denial, this access is abundant beneath anticipated today. Due to advancing biking bans and bankrupt consulates, it is abundant added ambiguous whether advisers will be able to reenter the U.S. With so abundant ambiguity about the adeptness of advisers actuality able to acknowledgment to the U.S., companies charge to accord greater application to angry address denials.
As allotment administration know, there has been a aciculate access in requests for affirmation and denials in contempo years. Between budgetary year 2015 and budgetary year 2018, the abnegation amount for new H-1B petitions quadrupled from 6% to 24% according to a action abrupt by the Civic Foundation for American Policy,[2] based on abstracts acquired from the USCIS H-1B employer abstracts hub.[3]
With the abundant access in denials, some administration began to catechism the amends of USCIS decisions and claiming denials via litigation. Contempo cloister decisions accommodate hope, accurately to H-1B administration who seek an another way to absorb adopted aptitude in the U.S.
For example, there is favorable new persuasive case law apropos the analogue of a specialty occupation. Last August, in Relx Inc. v. Baran, the U.S. District Cloister for the District of Columbia reprimanded USCIS, advertence that the clearing statute does not crave that alone one blazon of amount be accustomed for a position to be advised specialized.[4]
In addition, USCIS afresh agreed to a adjustment in ITServe Alliance Inc. v. USCIS, which overturned restrictive behavior that were actuality activated adjoin administration and their H-1B employees.[5] In the settlement, the government agrees to the afterward with account to all H-1B petitions:
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Action Plan for Administration Who Choose to Claiming Denials
Employers who are because arduous a abnegation should booty the afterward steps:
In summary, if the abnegation accommodation will accept a ample appulse on the business, administration may appetite to accede angry back. The accepted action ambiance makes the stakes are college than anytime aback an employee's clearing address is denied.
The opinions bidding are those of the author(s) and do not necessarily reflect the angle of the firm, its clients, or Portfolio Media Inc., or any of its or their corresponding affiliates. This commodity is for accepted admonition purposes and is not advised to be and should not be taken as acknowledged advice.
[1] USCIS and AAO Abstracts for FY2019, AAO Address Adjudications, https://www.uscis.gov/sites/default/files/USCIS/About Us/Directorates and Program Offices/AAO/AAO_Data_for_Publishing_Thru_FY19.pdf.
[2] Civic Foundation for American Policy, "H-1B Abnegation Rates: Assay of H-1B Abstracts for Aboriginal Two Quarters of FY2019," August 2019, https://nfap.com/wp-content/uploads/2019/08/H-1B-Denial-Rates-Analysis-of-H-1B-Data-for-First-Two-Quarters-of-FY-2019.NFAP-Policy-Brief.August-2019-1.pdf.
[3] U.S. Citizenship and Clearing Services, H-1B Employer Abstracts Hub Files, https://www.uscis.gov/tools/reports-studies/h-1b-employer-data-hub-files.
[4] Relx Inc. v. Baran , 397 F. Supp. 3d 41, 54-55 (D.D.C. 2019).
[5] https://nfap.com/wp-content/uploads/2020/05/ITSERVE-SETTLEMENT-AGREEMENT-fully-executed_Redacted52020.pdf.
[6] U.S. Citizenship and Clearing Services, Action Memorandum, PM-602-0114, June 17, 2020, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf.
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[7] ITServe Alliance, Inc. v. Cissna , No. 1:18-cv-2350, blooper op. at 43 (D.D.C. Mar. 10, 2020).
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