Appealing an H-1B Visa Decision What It Looks Like

Although U.S. courts are not loaded up with appeals of H-1B visa decisions, appealing such a decision isn’t out of the question. Immigration officials are human beings. Sometimes they make decisions that need to be corrected. When such a decision involves an H-1B visa denial, it can be appealed.

We recommend utilizing the services of an experienced H-1B visa attorney. There are multiple reasons for this, the first of which being that immigration cases are handled mostly under an administrative law arrangement. Cases are also managed mostly on paper. Appealing an H-1B visa is nothing like the court dramas you see on TV.

Although every case is different, here is a description of what a typical case looks like:

1. A Denial Notice Is Issued

Having to appeal an H-1B decision begins with the USCIS issuing a notice of visa application denial. This document outlines the reason or reasons for the denial. It is imperative that the applicant or their attorney understand the specific reasons so that a successful appeal can be put together. This is yet another reason we recommend an experienced H-1B visa attorney.

2. Putting Together the Appeal

The government’s denial notice should make it pretty clear why the application was rejected. Now it is up to the applicant and his or her attorney to address the shortcomings identified by USCIS. Any shortcomings that can be adequately addressed should be.

This could be as easy as producing additional documentation. It could mean submitting detailed explanations for things that appear questionable. In many cases, appealing an unfavorable H-1B decision involves nothing more than providing additional information that proves the immigrant worker’s job qualifies as a specialty occupation under the H-1B rules.

3. Filing a Notice of Appeal

In order to appeal in H-1B visa decision, the applicant or her attorney must file Form I-290B, Notice of Appeal or Motion within 30 days of receiving the government’s denial notice. This form is the tool that facilitates the appeal process. It needs to be filled out completely and submitted within the deadline along with a filing fee.

In addition to the form, we strongly urge filing a legal brief explaining why the original decision should be overturned. This takes us right back to hiring an experienced H-1B visa attorney. The stronger the legal arguments in favor of overturning the original decision, the greater the chances of winning the appeal.

4. Official Government Review

Upon receipt of the documentation, the USCIS Administrative Appeals Office is compelled to conduct a review. Officials review both the appeal documents and the original application. They make a decision from there. In some cases, officials may ask for more information before rendering a decision.

One of two decisions will be reached:

  • Approval – Upon review, government officials could ultimately reverse the original decision, thereby approving the applicant’s H-1B visa petition.
  • Denial – Conversely, officials could uphold the denial. In such a case, it would be up to the immigrant worker and his attorney to figure out the next move. One possibility is filing a federal lawsuit. Another is looking to see if the applicant meets the requirements for another type of work visa.

Appealing immigration decisions is difficult by design. Workers whose applications have been denied should be aware that success is not guaranteed. Filing an appeal doesn’t mean you win.

If you or your employer is struggling to figure out what to do after your application has been denied, we invite you to contact Graham Adair. One of our experienced H-1B visa attorneys would be happy to look at your case and discuss the possibility of an appeal.

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