When a petition or application in denied by the USCIS, the letter denying the case includes a Form I-290B that the petitioner or applicant can complete to file an appeal of the case to the AAO, a Motion to Reopen or a Motion to Reconsider.  The latter two motions are decided by the USCIS.  The appeal however, lets your case be reviewed by another set of eyes.  Although it depends on the type of case , the odds of having your case overturned on appeal are low.

For example, according to the AAO, in FY 2011 it dismissed 523 appeals, sustained 15 and remanded 12, in 2012 there were 904 dismissals, 17 cases sustained and 11 remands, in FY 2013 there were 751 dismissals, 10 sustained and 25 remanded and in FY 2014 there were 509 dismissed, 16 sustained and 12 remanded.  Feeling lucky?  Then try your hand at appealing an H-1B to the AAO.

When one reads AAO H-1B denial decisions, many of them seem to rubber-stamp the adjudicator’s denial and sometimes the AAO will even add additional reasons to deny the case that the adjudicator had not considered.  Appealing a denied petition to the AAO does not leave the appellant with the feeling that they are necessarily getting a fair shake.

However all is not lost.  If you receive a decision that is unreasonable, under the Administrative Procedures Act, which allows individuals to sue the government for unlawful agency action.  Lawyers with strong H-1B denials have had success escalating such cases to Federal Court.  If the USCIS has made an arbitrary and capricious decision on your case, a federal suit may be a course of action worth pursuing.  It is advisable to consult with an experienced immigration attorney since many factors must be considered prior to filing suit.

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Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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