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  • Article: 8 C.F.R. § 103.5(a)(5) and its potential for abuse by USCIS. By Spencer Sheehan

    8 C.F.R. § 103.5(a)(5) and its potential for abuse by USCIS


    The purpose of this letter is to share with fellow practitioners the conduct of USCIS. Specifically, in the context of the well-known non-immigrant employment application, otherwise known as the H-1B Visa.

    In 2014, my office filed an application for an H-1B visa on behalf of a client’s business. After an initial Request for Evidence, the application was denied in less than twenty-four (24) hours. While it is not expected that decisions churned out by overworked service center employees will be paragons of legal reasoning, it is surely not too much to ask that USCIS actually read the submitted materials.

    Case in point, my client had submitted job advertisements which were publicly posted in an attempt to fill the position in question. In the RFE, USCIS requested that if job advertisements were posted, they should be submitted to the agency as evidence of the position's requirements.

    In its decision of July 30, 2014, defendant USCIS recounted the usage of job advertisements as a form of potential proof of the duties described for the position. In reciting the evidence it believed I submitted on behalf of my client, USCIS stated I had provided them with:

    Job postings for similarly related positions. However, USCIS cannot determine the size of these companies, the number of employees working, the duties and responsibilities, since the information submitted was without regard to company size and they all employ residential market research analyst related positions with unspecified degrees.

    All of the job advertisements contained the company's name on them. The job ads for this specific position were also referenced in other parts of the application. These job postings were the first piece of evidence examined by USCIS. After "evaluating" the ads, USCIS discarded the other evidence in the application based largely on its negative determination regarding the job ads it failed to read.

    The client and I decide not to partake in the administrative appeals process, since it was expected that users would merely rewrite the decision and deny it on other grounds, though without the glaring errors present in its initial denial.

    In mid-October, 2015, I commenced an action in the District Court for the Eastern District of New York seeking a determination that the agency's decision was arbitrary, capricious and contrary to law. As a courtesy to my adversary, I contacted a senior attorney at the U.S. Attorney's Office who often handles these matters for the agency. It was my expectation that, having seen the blatant errors in USCIS' decision, my client’s application would subsequently be approved. And even if it wasn't approved, I'd litigate the case until I couldn't anymore.

    Several weeks later, USCIS purportedly reopened the application by invoking 8 C.F.R. § 103.5(a)(5) ("Motion by Service officer"). I say "purportedly" since their internal record of the date which it was reopened is inconsistent. Lo and behold, the United States Attorney argues to the Court that since the decision was reopened and now the case must be dismissed since there no longer exists a "final agency action." 5 USC § 704.

    After over a year lying dormant, suddenly my client’s case is reopened and USCIS would have the Court believe, jurisdiction disappears in a puff of smoke. While there are decisions from Washington and California which support the government's position, the more important question is "When does it end?" 1

    What's to stop USCIS from ever having to litigate an H-lB visa case if they can, like Lucy to Charlie Brown, pull away the football at the last possible moment? Suppose my client responds to the new Request for Evidence and USCIS again denies the application, theoretically I can come back to the same court. However, why can’t USCIS just reopen the case again?

    This type of action allows an agency to insulate its decisions from scrutiny and of course, judicial review. Additionally, this conduct encourages an agency to not be accountable for its mistakes. After all, it can just ask for a "do over" and there’s little that could be done. I was told by the U.S. Attorney that almost everyone in my position accepts the agency’s reopening and discontinues their case. However, doing so allows this cycle to continue whereby agency decisions go unreviewed by any independent body- in this case, the judiciary. That's why I said to opposing counsel that I'd rather lose the case on the jurisdiction argument than permit abuses like this to continue, despite what I'm told is a "fair review" of the evidence. Sometimes principles have to come first.

    1 Net-Inspect, LLC 11. US Citizenship and Immigration Services, No. C14-1514JLR (W.D. Wash. Feb. 28, 2015) and True Capital Management, LLC v. United States Department of Homeland Security, No. 13-261 jSC (N.D. Cal. June 20, 2013).

    Reprinted with permission.

    About The Author

    Spencer Sheehan is an attorney in private practice in Great Neck, New York. He practices in the areas of immigration, consumer and administrative law. To Sheehan, the common strand in such cases is the misuse or abuse of authority/negotiating power by a larger entity (be it a corporation or governmental body) with respect to its more diminutive and generally weaker adversary. Among other activity, Sheehan was co-lead counsel in the first case which challenged food manufacturer's labeling of their products as "raw." Sheehan also represents former subway vigilante Bernard Goetz against his landlord's claims that Goetz possesses "wild squirrels" in his Manhattan apartment. Before becoming an attorney, Sheehan served in the United States Marine Corps. He is a graduate of a Georgetown University (2002) and Fordham University School of Law (2010).

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Putting an H-1B petitioner in a position where it is necessary to rely on newspaper job ads in order to show that the offered position is a specialty occupation can be very risky and counterproductive. Yes, I know that the regulations allow using this kind of proof, but for some reason, USCIS officers hate to accept it. It is possible that the entire unfortunate saga of denial and fruitless appeals described above might have been avoided by a little more attention to the OOH (Occupational Outlook Handbook), which, in my long (more than 25 years) H-1B experience is the only type of evidence that H-1B examiners like to rely on to show proof of specialty occupation.

      So here are my three rules for avoiding the kind of problem described in the above article:

      1) Check out the OOH's educational requirements for the offered H-1 job first,
      2) Check the OOH again,
      3) Keep checking the OOH until you are absolutely sure that the OOH requires at least a bachelor degree related to the job as the minimum requirement for the position,
      4) Finally, make sure that the H-1B beneficiary has the required degree (or equivalent).

      Anyone who doe not use the OOH as the Alpha and Omega (beginning and end) of preparing an H-1B job title and job description is simply looking for trouble.

      Roger Algase
      Attorney at Law
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