3/17/2010

As is widely known, the U.S. Citizenship and Immigration Services (USCIS) has become far stricter in H1B cases. This is especially significant for IT consulting companies. As a result, some of these employers are experiencing denials of their H1B petitions.

Many employers faced with H1B denials immediately want to argue with the USCIS about the decision. This, in part, is due to the language in the denial alerting the employer to the opportunity to challenge the case. It is not unusual for an employer to assume that the only option available is to challenge the denial of the case. This is frequently interpreted as meaning that cases can be re-worked to fix the problems in the context of motions. Generally, this is not accurate.

In order to effectively challenge the USCIS on a denial decision, it is necessary to demonstrate that the decision in a particular case was wrong. This means that if the case has fatal flaws, such as not having a proper LCA, then it generally is not possible to overcome the H1B denial. If the H1B petition was filed based on speculative employment, and no proof exists of a valid job offer at the time of the filing, then a motion is not likely to be successful.

There are other instances in which the USCIS is arguably wrong, and it may be worth trying to succeed in a motion. But, if the USCIS is right and the case, as filed initially, has fatal flaws, then it is necessary to explore options other than arguing about the denial in a motion.

One of the driving factors in the decision to argue about a denial seems to be the incorrect belief that it provides the same benefits and privileges as a pending H1B extension of status case. That is, employers and foreign nationals often assume that filing a motion to reopen or reconsider allows a foreign national to remain in the United States legally and continue to work while the motion is pending. It is often assumed that, since an individual was eligible to work while his/her H1B case was pending, the same must hold true while a motion in the case is pending.

Under the regulations, unless specified by the USCIS, filing a motion to reopen or reconsider does not stay, or stop, the decision or its impact. If the motion is ultimately successful and the case is finally approved, then the situation will be resolved as if there had not been a denial. But, unless and until that happens, the case is still considered as having been denied. When the initial filing contains fatal flaws that make it not approvable under law, it remains as a denial - with or without the motion.

If a denial terminates one's status and/or lawful presence in the United States, s/he risks suffering a three- or ten-year bar on reentry to the United States following departure. Often, the solution to status problems requires a departure, so this is most significant. Even absent the three- or ten-year bar, it would be necessary to explain the period of unlawful presence as part of the visa application process at the consulate. The continuation of employment is also a problem, if the individual does not have a separate authorization to work. This compounds his/her immigration problems, as well as those of the employer.