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  • Writer's pictureMatthew Galati

When Extraordinary is Not Enough, Employers and Immigrants Should Consider Turning to the Courts

Updated: Jan 16, 2021

Despite a lack of tangible revisions to USCIS’ petition-based employment visa categories, any immigration lawyer practicing these last four years can tell stories of the Trump Administration’s “shadow directives.” These directives, as described by former Obama Administration Official Doug Rand in an excellent recent piece by The Bulwark entitled “Uninstalling Stephen Miller”, have led to palpable increases in Requests for Evidence and sharp increases in denials. This bureaucratic bad faith affects all employment-based petitions, even the visas that are reserved for the world’s best and brightest.

The first-time filing employer, or an immigrant encountering USCIS himself/herself, might not be able to appreciate how much has changed regarding the day-to-day adjudication of cases. Indeed, the Trump Administration spent years and significant political capital bent on promoting its so called “merit immigration”, although what that would actually have been will never be known. Thankfully, the Trump Era will end without many significant revisions to the immigration statutes and – at least for employment-based immigration – the attendant regulations. (This is not true for humanitarian immigration, which would merit its own article).

The Trump Administration’s lip service to seeking “merit” and “the best and brightest” in immigrants has been false advertising. USCIS’ track record these past four years has been abysmal in the “extraordinary ability” categories. An article by Mother Jones pointed out that approval rates of EB-1A petitions dropped by 26 points in 2019. Nonimmigrant extraordinary ability cases (O-1 visas) have faced similar denials and RFE hurdles. I expect the 2020 data to be even worse, once finalized and finally published by USCIS. Getting accurate, timely statistics is its own challenge these days.

The Bulwark’s thesis is that reversing the Trump administration’s shadow directives “will be an endeavor that takes several years, at minimum.” Indeed, President-Elect Joe Biden cannot remove and replace the anti-immigrant Trump/Miller loyalists overnight, or perhaps even in one term. Challenging adjudications will continue until the anti-immigrant culture at USCIS is eliminated and we can restore “sanity to the system.” Extraordinary ability petitioners should continue to expect RFEs that question whether an Emmy is a major internationally-recognized award (the regulation says it is), at least for the next few months or years.

So, assuming USCIS’ intransigence, what can be done? There continues to be hope – and that hope runs through the courts as opposed to continuing to engage with USCIS. Under the Administrative Procedure Act, employers (and perhaps immigrants themselves) that are adversely affected or aggrieved by agency action can seek review through the federal judiciary. The statute of limitations for such actions is generally six years. Additionally – at least in the EB-1A / O-1 context – there is no perquisite to first appeal USCIS’ denial to its Administrative Appeals Office (AAO). The AAO, predictably, has become a graveyard for denied parties seeking bona fide review of denied cases. For illustration, appealed O-1 denials are 0-32 in FY2020. In my practice, I try to avoid the AAO whenever I can.

We recently had a major success in federal court, a trend I am optimistic will continue in the Biden Administration. I represented an impressive Vietnamese entrepreneur – we will call her “Ms. Pham” – who had revolutionized her industry in Vietnam. Starting from poverty, Ms. Pham became immensely successful after introducing novel techniques relating to the importation of goods to her suppliers. This led to rapid success, an immense market share, and notable publicity. She graced the pages of major national media, women’s magazines, and even national TV. She penned widely read op-eds in those same media publications. Ms. Pham won major awards, bestowed upon her at industry events keynoted by some of Vietnam’s highest-ranking government officials. Yet despite these accolades, Ms. Pham’s O-1 petition was denied twice by USCIS, tainted by three-plus years of Trump/Miller influence.

Following the second denial, we sued in federal court. Within 60 days of serving the complaint, an approval notice was in the mail. Ms. Pham and her family now have O-visas.

Do all cases end up this way? Absolutely not – and we were ready to go to summary judgment and oral argument if we needed to. But would Ms. Pham really have a chance before the AAO given that 32 others failed this year? Would she have her approval had she given up upon receiving the second denial?

Federal court lawsuits are defended by the U.S. Department of Justice. While that agency has its own shameful episodes in the Trumpian Era, unlike USCIS, it is not plagued by Miller’s anti-immigrant shadow policies regarding employment immigration. For the most part, neither is the federal judiciary. Independent-minded DOJ lawyers must determine whether they can defend USCIS’ (oftentimes) bad faith decisions in front of independent minded federal judges.

Uninstalling Stephen Miller, at least when it comes to individual cases, could advance significantly more rapidly through the filing of civil complaints as opposed to AAO appeals. I am optimistic that the DOJ will become more independent, more fair-minded, and reembrace the rule of law much more rapidly than USCIS after Biden takes office. Time will tell. But those extraordinary individuals who were promised a warm welcome based on their merit should consider this option given the shadow directives and false welcomes from Trump and Miller that dashed so many American dreams.

We remain ready and willing to litigate on behalf of those adversely affected by the Trump Administration’s delays and denials, even as the lingering effects of those policies continue in the coming years. Contact us today for more information regarding federal court representation.

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