Immigration Petition Denials for the Extraordinary and Exceptional: To Sue or Not to Sue?

When it comes to immigration petitions for extraordinary ability (EB-1) or exceptional ability (EB-2) visas, denials by U.S. Citizenship and Immigration Services (USCIS) can be both frustrating and devastating. These visa categories are designed for individuals who have achieved a high level of recognition in their fields, whether in the arts, sciences, business, or athletics. However, even with strong credentials and thorough documentation, USCIS denials are not uncommon.

What options do you have if your petition is denied? One possible recourse is filing a lawsuit under the Administrative Procedure Act (APA). This article explores the pros and cons of suing USCIS after a denial and how it can impact your immigration journey.

What Is an APA Lawsuit?

The Administrative Procedure Act (APA) allows individuals to challenge the actions of federal agencies, including USCIS, if they believe the agency’s decision was arbitrary, capricious, or not in accordance with the law. In the context of immigration, an APA lawsuit can be filed to challenge USCIS’s denial of an EB-1A extraordinary ability or EB-2 national interest waiver (NIW) petition.

An APA lawsuit doesn’t necessarily guarantee a win, but it compels the court to review the denial. Courts can either uphold USCIS’s decision or send the case back to USCIS for reconsideration, with instructions to follow proper procedures or address any legal errors.

Why File an APA Lawsuit?

Filing an APA lawsuit can be a strategic move when other options, such as appealing the decision or filing a motion to reopen or reconsider, are unlikely to succeed. Here are a few reasons why an APA lawsuit might be the right path:

● USCIS error: If your denial is based on a clear error or misinterpretation of the law, a lawsuit can challenge that mistake and push USCIS to reconsider.
● Arbitrary decisions: In some cases, USCIS denials may seem arbitrary or overly restrictive. Courts have the power to review whether USCIS applied the correct legal standards and even overturn .
● Exhaustion of administrative remedies: Once you’ve gone through all the administrative channels—such as appeals and motions—suing USCIS may be the only option left.
Risks of Filing an APA Lawsuit

While suing USCIS can offer a path to relief, it’s not without risks. Lawsuits can be time-consuming and expensive, and there’s no guarantee of success. Courts tend to defer to agency expertise, so it’s crucial to have a solid legal argument before proceeding.

Additionally, filing a lawsuit does not pause your immigration status or provide interim relief. If you’re facing other immigration challenges, like an expiring visa or work authorization, those issues need to be addressed separately.
Optimizing Your Case for Success

If you are considering an APA lawsuit, the most critical factor is the strength of your underlying case. Ensure that your petition for an EB-1 or EB-2 visa includes substantial documentation, expert testimony, and evidence of your extraordinary or exceptional ability. A detailed and thorough filing can strengthen your position in court.
Conclusion: To Sue or Not to Sue?

Filing an APA lawsuit against USCIS can be a powerful tool when your extraordinary or exceptional ability petition has been unfairly denied. However, it’s essential to weigh the risks, costs, and potential outcomes before proceeding. Consult with an experienced immigration attorney to determine if an APA lawsuit is the right course of action for your case.

This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call us at 214-494-8033 or complete our contact form.