Appeal H1B Denial, Refile or Court Case? Stay in US while MTR pending?

Appeal H1B denial decision within 33 days. Unlawful presence counted if appeal denied. Refiling has better chance of approval than MTR. Court case should be last option.

Written by Am22tech
  By Am22tech      Updated  2 Mar, 20

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Can we Appeal H1B Denial?

You can contest the USCIS H1B denial decision within 33 days of rejection.

USCIS allows to file a review application for new H1B cap subject denial, extension and amendment rejections or transfer denials.

The 33 day timer starts on the day USCIS denies your H1B Extension or Amendment or Transfer and not the day your attorney receives the official USCIS denial letter.

Chances of H1B Approval after AAO Appeal

The chances of H1B approval after appeal are very low. The USCIS Administrative Appeals Office (AAO) appeal success rate is less than 3%.
The AAO appeal can take up-to 6 months.

The appeal process is followed by MTR (Motion to re-open) which again might take 6 months for final decision on your H1B case.

The success rate of H1B approval after MTR is low but it does get approved as shown in this real life case.

Chances of H1B Approval – Refiling vs Appeal

With the new trend set up by USCIS where they are denying H1B at alarming rates with reasons such as ‘Specialty occupation’ and employer employee relationship, the chances of approval are very good if you refile the H1B application rather than an appeal.

In recent cases reported on our forum, refiling an H1B application which is then processed by a different service center has resulted in an approval even though most of the case details remains same.

Examples of H1B approval after refiling:

Does Court Case Help Reverse H1b Denial?

In many cases, a federal court case has also resulted in approval when USCIS could not really prove their basis of denial.

Hear Hacking Law attorney discuss directly suing USCIS over H1B denial decision in federal court without first going for AAO appeal:


Open link in new window.

The court case has higher chance of reversing the H1B denial as judge is not part of the same organization as USCIS and DHS are. Judge will probably at the case in a more fair manner.

Once you file a litigation, court send summons to USCIS to respond with in 60 days to your complaint. In most cases (99%), USCIS simply re-opens the case instead of arguing in front of the judge and most of the time approves the case.

Example:

You should discuss your case with an attorney to know your options. There is no clear trend as to which strategy works and which one not.

My suggestion is to:

  1. Refile H1B extension or amendment if your i94 is still valid.
  2. File H1B extension, amendment or transfer with consular processing if i94 has expired. Wait for decision outside US.
  3. File a court case. Court case may be the most useful option if your H1B lottery application has been denied.
  4. File an Appeal while staying in US.

If you are outside US and have been stuck due to DS 5535 admin processing for longer than 3 months, a writ of mandamus is your option to file federal court case.

Does filing Court Case against USCIS affect future H1B extension?

The court case filing against USCIS does not affect your future H1B extensions in USA. You have all the rights to sue government as per US law.

Can I stay in US while H1B denial Appeal is Pending?

You can stay in US while your H1B denial appeal is pending.

What is the risk of staying in US while H1B denial Appeal is Pending?

The risk of staying in US while your appeal is pending is that your time spent in US after the H1B denial is still counted as “Unlawful presence” until the final appeal decision is taken by USCIS.

What is My Status if USCIS approves my H1B after Appeal?

If USCIS approves your H1B after appeal, your stay in US after denial to appeal decision date is counted as legal stay time.

What is My Status if USCIS Denies my H1B after Appeal?

If USCIS denies your appeal, all your time spent waiting for USCIS appeal decision is considered “Unlawful presence”.

What Can Happen If the Appeal Denial Comes after 180 Days?

You can get 3 year US entry ban if you have spent 180 days on “Unlawful presence”.

Is it better to refile H1B or appeal after Denial?

It is better to file refile H1B or file a court case against USCIS decision to get result faster than filing an appeal.

Source: USCIS




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