These days U.S. Citizenship and Immigration Services’ (USCIS) denial rate for H-1B petitions has substantially increased. Often these denials have devastating effect on small company’s operations. And many a times, a foreign national affected by the denial has no choice but to leave the United States otherwise he or she risks violating their immigration status.
After the denial, a company can file a Motion to Reopen and Reconsider with the USCIS or an Appeal with the Administrative Appeals Office (AAO) to challenge the USCIS’ denial. However, because of the lengthy adjudicative delays in pursuing either a Motion or an Appeal it is not recommended.
Federal Lawsuit Under Administrative Procedure Act
There is a least explored option of filing a federal lawsuit. An erroneous decision of USCIS can be challenged under the Administrative Procedure Act (APA). APA is a federal statute that governs federal agency’s action. “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. ” 5 U.S.C. § 702. Whether to pursue this option depends upon many factors.
Statute of Limitation
Although, APA does not mention a statute of limitations for challenging a federal agency decision, there is a six-year statute of limitations for suits against the federal agency of the United States.
The scope of this article is very limited and only for informational purposes. If you believe, USCIS erroneously denied your H-1B petition and want to explore the option of filing a federal lawsuit, please contact our firm’s H-1B Visa and immigration attorneys for consultation.
Bindi Parikh, Esq./Rajesh Prasad, Esq.