Is it Time to Take Citizenship and Immigration Services to Court?
Nov 26, 2018
Houston, TX (Law Firm Newswire) November 26, 2018 – For a considerable period of time U.S. Citizenship and Immigration Services (USCIS), has been acting against legal immigration by considering President Trump’s “Buy American, Hire American” utterance to be policy.
Since Trump’s utterance is not considered policy, the decision making process at USCIS has been left up to individual adjudicators and how they choose to adjudicate legal business immigration. As a result, the immigration and visa system is under pressure from the Trump administration.
The pressure form the Trump administration is forcing the USCIS office to reinterpret the term “Specialty Occupation” on H-1B visas without any legal authority. In fact the USCIS office determined that: Level 1 wages are not good enough, and that “Systems Analyst” is not a specialty occupation. “This is odd considering as even one year ago, there were numerous System Analyst occupations approved,” pointed our well-respected Houston immigration lawyer, Annie Banerjee.
In the L-1A and L-1B visa categories, it is almost impossible for small companies to secure an L-1A due to the fact that USCIS is uncertain and unclear about what a “managerial position” encompasses. In the L-1B category, things are not better, in fact unless an L-1B visa applicant has a patent, nothing is considered to be specialized knowledge.
“The upshot of the current confusion is there are huge numbers of denials and subsequent appeals to the Administration Appeals Office (AAO). The result is an enormous backlog that the AAO are told to rubber stamp,” Banerjee added. “Accordingly, we are going to sue USCIS in federal court, as the law is on our side.”
There are two types of lawsuits in this type of situation: a writ of mandamus or a declaratory judgment. A writ of mandamus compels USCIS to adjudicate the case(s). However, that means they can go ahead and adjudicate it and then deny it. This route is only worth going if there is an exceedingly strong case and the Optional Practical Training (OPT) or other existing restrictions do harm to the worker.
If striving for a declaratory judgment, this option is applicable for denials. It is important to note that business immigration litigation is in its infancy and USCIS does not have resources to hire experts or to defend lawsuits. If there is a strong case, the attorney and applicant stand a good chance of winning. Make sure to hire an attorney that specializes in business immigration and who practices mainly business immigration.
Law Offices of Annie Banerjee
131 Brooks Street, Suite #300
Sugar Land, Texas 77478
Phone: (281) 242-9139