When Faced With Unfair L-1 Denial, Attorney Litigates Instead
If you haven’t been paying attention to the online forums, you would have missed reading about the mass frustration immigration attorneys have faced with L-1 petition denials from USCIS. It’s not relegated to one category of L-1A or L-1Bs. Caught in the crossfire are U.S. employers, desperate to bring in their key personnel and managers to expand their U.S. businesses and markets.
In a recent L-1A case, Roy Watson, Jr., of Watson Law Offices in Bedford, Massachusetts, successfully litigated against USCIS and ultimately received an approval on the L-1A petition initially denied. Although there’s been a lot of coverage about the substance and merits of the underlying facts of the case and the legal analysis (you can read about it here and access the decision here), this article focuses instead on the procedural and practical issues involved in this case. Mr. Watson, Jr. was gracious enough to share some of his insights.
STRATEGY: APPEAL TO AAO OR LITIGATE IN FEDERAL DISTRICT COURT?
One of the biggest challenges when any case is denied is evaluating the options for the client to move forward when time can be of the essence. The challenge for any practitioner is to strategize how to successfully persuade after the USCIS has refused to accept any arguments provided in a response to a request for evidence.
According to Mr. Watson, the option for litigation needed advanced planning. “The decision to go into Federal Court was carefully planned, and we included a request for a preliminary injunction as a means of ‘forcing’ the issue.”
This strategy appeared to have worked especially well where recent favorable decisions from the Administrative Appeals Unit had not. “CSC was simply ignoring them, which is probably another reason why we got such a strong decision out of AAO,” said Mr. Watson, As part of the negotiated settlement of the Federal Court suit, CSC agreed on its own motion, to re-open the L-1A case. This enabled the client to be placed “back into status and allowing the foreign national to lawfully continue to receive a salary.” They further agreed to request an expedited track, with AAO which resulted in a decision being rendered in two and a half weeks.
Injunctions are an interesting strategy and a potentially worthwhile approach to expediting action from the government.
I’ve covered the topic on immigration litigation in the past and so it continues. Litigation serves a purpose, and sometimes a very useful and righteous purpose. Mr. Watson is steadfast in his advice on litigation. “My advice to all lawyers is to litigate. We have lost the respect of the agencies, and unless we begin to challenge them, we will never gain it back.”
Litigation though, requires advance preparation and planning. Mr. Watson described his collaborative approach with Mr. Piston. “[We] spent a considerable amount of time strategizing how to best and most effectively approach” litigation, which meant confronting the Service’s habit of interpreting the laws any way it desires rather than according to reason and logic or the clear intent of the law as written.
From a practical perspective, the odds are stacked against an employer for many reasons when it comes to options after a denial. Mr. Watson explains why:
While there was certainly a greater cost to litigate this case in Federal Court than there might have been to simply appeal, there are also significant “hidden” costs on just filing an appeal.
First, there is the cost of the appeal, which is now up to $630. That is no longer a “small” filing fee, but that cost is only slightly higher than the filing fee of the Federal Court. However, no one would file an appeal to the AAO without briefing the case and submitting a detailed Memorandum of law, which may incur substantial additional legal costs to the employer.
Beyond that, there is the cost to the employer and its foreign worker, who must wait, twisting in the wind and – technically – unlawfully here without any ability to receive a lawful salary. It’s difficult to imagine how foreign workers can remain the in U.S. indefinitely without being able to draw an income.
Finally, there is the “all or nothing” risk factor where a decision that takes longer than 180 days, dramatically increases the risk of the 3 and 10 Year Bar for a client who remains. You had better be really sure of winning if you are going to put a client at that kind of risk.
As the upcoming Chair of the Litigation Committee for IMG (International Medical Graduates) Task Force, Mr. Watson will no doubt continue to advocate litigation when appropriate in addition to reaching out to fellow immigration litigators like Mr. Piston when the occasion arises. Collaborating with the right expertise is a critical component for successful litigation strategy.
How ill you approach litigation when given the opportunity? How will you persuade your clients to opt to challenge unjust denials? Will you consider a preliminary injunction in addition to filing a complaint in federal district court?
Mr. Roy Watson, Jr. is the Principal at Watson Law Offices, practicing exclusively in U.S. immigration law serving corporations, businesses and individuals for over 35 years. He practices in the Greater Boston Area. Access his immigration blog here.