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.
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Can we Appeal H1B Denial?
Yes, you can contest the USCIS H1B denial decision within 33 days of rejection.
USCIS allows filing 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 anywhere from 3 to 6+ months. There is no fixed timeframe and varies based on the current processing times.
The appeal process is followed by MTR (Motion to re-open) which again might take 6 months for the 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.
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 approval even though most of the case details remain the same.
Examples of H1B approval after refiling:
- H1B denied by California, Approved after Refiling at Nebraska.
- H1B extension was denied, filed again with ‘consular processing’ at Chennai option and was approved.
- H1B extension denied, filed H1B transfer from India and got approved.
- USCIS denied H1B Amendment but approved extension.
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:
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The court case has a higher chance of reversing the H1B denial as a judge is not part of the same organization as USCIS and DHS are. The judge will probably at the case in a more fair manner.
Once you file litigation, the court sends summons to USCIS to respond within 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.
- In case of QA Analyst position H1B denial as specialty occupation, even the court could not revert the USCIS H1B denial decision.
- USCIS decision of not accepting MBA with Data Analyst job as a specialty occupation was overturned by federal judge.
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 does not.
Our suggestion is to:
- Refile H1B extension or amendment if your i94 is still valid.
- File H1B extension, amendment or transfer with consular processing if i94 has expired. Wait for decision outside US.
- File a court case. Court case may be the most useful option if your H1B lottery application has been denied.
- File an Appeal while staying in US.
If you are outside the 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 a federal court case.
The court case filing against USCIS does not affect your future H1B extensions in the USA. You have all the rights to sue the government as per US law.
You can stay in the US while your H1B denial appeal is pending.
The risk of staying in the US while your appeal is pending is ‘unlawful presence’.
Your time spent in the US after the H1B denial is still counted as “Unlawful presence” until the final appeal decision is taken by USCIS.
If USCIS approves your H1B after appeal, your stay in the US after the denial to appeal decision date is counted as legal stay time.
If USCIS denies your appeal, all your time spent waiting for the USCIS appeal decision is considered “Unlawful presence”.
You can get 3 year US entry ban if you have spent 180 days on “Unlawful presence”.
It is better to file refile H1B or file a court case against USCIS’s decision to get results faster than filing an appeal.
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