Challenging H-1B Denials in Federal Courts: Trends and Strategies

6 Pages Posted: 7 May 2020 Last revised: 7 Oct 2020

See all articles by Hun Lee

Hun Lee

Cornell University - Law School

Stephen Yale-Loehr

Cornell University - Law School

Abstract

The denial rate for H-1B petitions has quadrupled over the past few years, increasing from six percent in fiscal year (FY) 2015 to twenty-four percent in FY 2018. After President Trump issued his ‘‘Buy American and Hire American’’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has effectively raised the standard of proof on H-1B petitions.

USCIS has used several reasons to deny H-1B petitions, including claims that the employer failed to show that a position qualifies as a ‘‘specialty occupation,’’ impermissibly assigned employees to third-party worksites, or failed to pay the required wage.

Under USCIS’s recent approach, many H-1B petitioners are virtually faced with a ‘‘preordained denial’’ regardless of how well they respond to requests for evidence (RFEs) or appeal their denial to the USCIS Administrative Appeals Office (AAO). More and more H-1B petitioners have challenged the legality of H-1B denials by filing complaints in federal court. Many have succeeded in getting their H-1B denials reversed.

We have compiled a spreadsheet of over fifty federal court cases brought against USCIS in the last two years concerning H-1B denials. This article presents the litigation trends we have observed and offers strategies for immigration attorneys considering litigation to challenge an H-1B denial.

The bottom line: sue!

Keywords: H-1B visas, U.S. Citizenship and Immigration Services, USCIS

Suggested Citation

Lee, Hun and Yale-Loehr, Stephen, Challenging H-1B Denials in Federal Courts: Trends and Strategies. Cornell Legal Studies Research Paper 20-36, Available at SSRN: https://ssrn.com/abstract=3594655 or http://dx.doi.org/10.2139/ssrn.3594655

Hun Lee

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Stephen Yale-Loehr (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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