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When your L-1B (or any other Employment-Based Petition) is Denied, Don’t File a Motion to Reopen – Take them to Federal Court!

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We’ve all seen some of the hoops USCIS is making practitioners and employers jump through when trying to seek an L-1B (Specialized Knowledge Intracompany Transferee) approval for an employee and the daunting prospect of submitting a Motion to Reopen to U.S. Citizenship and Immigration Services (“CIS”) to challenge a wholly unfounded denial.  I think it goes without saying that filing a Motion to Reopen can not only be fruitless, but also be subject to what seems an endless processing time.
My most recent approval was just this scenario, and we took it to federal court instead – a denied L-1B, and after only a few short months a reopening of the denial, and a response to an RFE, we now have an approved L-1B success story.    

Fortunately, there is a much better alternative – look into filing a Declaratory Judgment Action in federal court.  It’s the best and most efficient way to challenge the decision AND make it an even playing field to argue your position.  I say that because CIS is put on notice that if they take a restrictive position on L-1B eligibility they will have to face the issue in federal court.  CIS rarely wants to be bothered with this, so they agree to settle by reopening and approving the petition, sometimes with an RFE first. 

Challenging USCIS in federal court has become fairly routine for me, and I have learned that it’s not only effective for L-1Bs, but for any employment-based petition so long as we feel it was in fact an approvable case and CIS simply misapplied the standards.  The other benefit is that the Petitioner is not required to go through the Motion to Reopen process before bringing directly into federal court.  It may seem intimidating to the employer, but is typically much more painless than the former. 

Please contact me at 404.949.8151 or dclaffey@immigration.net with any questions.
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