When an L-1 Visa is denied by USCIS, you may have the option of skipping an administrative appeal to the AAO, and file a petition for review with a Federal District Court under the Administrative Procedure Act.
The L-1 Visa is designed for intra-company personnel’s transfer within branches of a multinational company. The main requirement for the L-1 Visa is that the beneficiary has been employed from the company abroad for at least one of the three years preceding the Visa petition.
There are two types of L-1 Visa: the L-1A, for Manager and Executives, and the L-1B, for specialized employees of the company.
The L-1 is a very desirable Visa, because:
• it does not require for a beneficiary to have any particular academic qualification;
• it allows “dual intent”, meaning that an L-1 Visa holder is allowed to seek permanent resident status;
• unlike the H-1B Visa; it is not subject to annual caps.
On the other hand, it has become increasingly more complicated in the past few years to obtain L-1 Visas.
L-1A Visas are generally denied due to insufficient staffing of the U.S. Company. It is important to note that immigration laws do not require a minimum number of employees that an L-1A beneficiary is supposed to supervise, and often USCIS abuses of its discretion.
On the other hands, L-1B Visas are often denied (denial rate is around 80%) for the reason that USCIS claims that the type of work is not “specialized” to a level required by federal law.
When an L-1 petition is denied by USCIS, an appeal can be filed with the Administrative Appeals Office (AAO). However, I strongly believe that, in most cases, there are at least three compelling reason to skip an administrative appeal, and to go directly to a Federal District Court.
First, the AAO has become extremely slow in adjudicating appeals of Visa denials. In my experience, you will not get a response in less than 6-8 months. It is hard to believe that any multinational company can wait this long to know whether they can transfer an employee to the United States branch.
Second, although Federal Court review is very limited, most denial decisions by USCIS are irrational, arbitrary, and capricious, falling within the scope of the judicial review provided by the Administrative Procedure Act (APA). This is especially true in L-1B Visas. Besides very few instances, USCIS simply does not have the expertise to establish whether a job description involves “specialized” or “advanced” knowledge of the company’s product or procedures. As a result, USCIS often denies L-1B Visa petitions by simply ignoring the evidence submitted, or by giving it an improper and irrational meaning.
Last, by filing an appeal in Federal District Court, you will have an opportunity to present your case to a judge, discussing at length the specific facts of your case. Besides the timing, (the U.S. has 60 days to file a responsive pleading) it is also important to note that the Federal Government may not have always a strong interest in litigating Visa appeals matters.
Of course, many will ask: how it is possible to skip the Administrative Appeal Office?
As said before, Federal Court review of Visa denials is limited by the APA.
The Supreme Court has ruled that in cases seeking judicial review pursuant to the APA, a plaintiff is not required to exhaust non-mandatory administrative remedies. Darby v. Cisneros, 509 U.S. 137 (1993).
The Supreme Court based its decision on the language of 5 U.S.C. § 704, which states that an agency decision is deemed final, and therefore immediately subject to judicial review, despite the possibility of any form of reconsideration or appeal, unless an appeal is mandatory or “required by rule” where the rule also makes the agency decision “inoperative” pending the outcome of the appeal. Id.
Darby ‘s interpretation of 5 U.S.C. § 704 was cited with approval in a recent First Circuit decision, Nkihtaqmikon v. Impson, 585 F.3d 495, 498–99 (1st Cir.2009).
Applying the Darby doctrine to the immigration context, an appeal is not required prior to seeking judicial review if: (1) there is no statute or regulation that mandates an appeal to the AAO, or, (2) even if there is such a statute or regulation, it does not stay the agency decision pending the outcome of the appeal.
The INA does not require an appeal to the Administrative Appeals Office. Further, the regulations governing L–1 visas plainly state that an appeal from a USCIS decision is optional, not mandatory. Under 8 C.F.R. § 214.2(l)(10), a petition denied in whole or in part may be appealed under 8 C.F.R. part 103. Olamide Olorunniyo Ore v. Clinton, 675 F. Supp. 2d 217, 223-24 (D. Mass. 2009).