Posted in Administrative Procedure Act, Courts on Immigration Law, Employment-Based Immigration, H-1B Visas, Immigration Lawyers, Immigration Regulations, Legal Representation, USCIS Much digital ink has already been spilled reporting on the phantom tide of undocumented migrants supposedly breaching our Southern border.  This article will address a different, but very-real immigration flood, and suggest ways U.S. employers, noncitizens, and their lawyers ought be emboldened to add to the deluge. Ironically, it is about a dry subject – federal district court review of what immigration grievants claim are widespread, arbitrary, capricious and otherwise unlawful work-visa petitions and employment-based green card denials under Section 702 of  the Administrative Procedure Act,  5 U.S.C. § 702 (APA).  The agency triggering this agita is U.S. Citizenship and Immigration Services (USCIS), a component of the U.S. Department of Homeland Security (DHS). As immigration stakeholders are painfully aware, USCIS routinely flouts its own regulations, precedent immigration decisions, and the APA, all the while spurred on by the dog whistle of an executive order known as BAHA. Although the focus here will be on USCIS’s rejections of employment-based immigration petitions, the same observations and strategies offered here readily apply as well to family-based requests for immigration benefits.  The ideas below may also help in litigating the practices formulated in Washington by the Bureau of Consular Affairs which have resulted in growing numbers of visa refusals premised unlawfully on BAHA (notwithstanding the execrable principle of consular nonreviewability). Increasingly, with a fervor heretofore unknown, USCIS is denying petitions that seek new or extended grants of employment authorization for prospective and current knowledge workers, while – in especially galling fashion – reopening and revoking previous work approvals for incumbent employees. (Media articles have reported the phenomenon here, here, here, here, here, and here, while Members of the House are demanding data and documents on these troubling developments.) The reasoning of the denials has regularly relied upon a “jurisprudence” alien to our Anglo-American legal heritage – MSU (Make Stuff Up) law. The most egregious and recurrent refusals have involved the H-1B visa category for workers in specialty occupations.  (USCIS recently offered its own analysis of why it often demands additional evidence when it is poised to deny H-1B visa petitions: “Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018 USCIS”).  As will be shown below, some of the most go-to grounds for H-1B petition denials are unanchored to statutory text, agency regulations and long-standing interpretive guidance can be found among the gamut of immigrant and nonimmigrant work visa classifications. Old litigation wine in new bottles. With mounting outrage, rebuked employers and noncitizen workers are channeling Howard Beale from the venerable film Network, and screaming, “We’re as mad as hell, and we’re not going to take this anymore!”  Just like the film, it is an old story with modern resonance – old, because the APA has been around since 1946, and foreign workers, American employers, and their immigration lawyers have been suing USCIS since its inception in 2003, and long before that, the APA defendant of choice was the legacy agency, Immigration and Naturalization Service (INS). An OILy solution slip-sliding away. No one likes to be sued, and fewer still relish losing.  The INS — then an agency in the U.S. Department of Justice (DOJ) — was no different.  INS commissioners of yore found that when APA actions challenging their agency’s immigration decisions were brought in the various federal district courts, the local Assistant U.S. Attorney (AUSAs) assigned to the case often pressured INS to surrender and settle by issuing to the plaintiff the approval notices they failed to secure through the usual immigration petition and application process.  AUSAs, INS perceived, much like most lawyers practicing in disparate legal fields, seemed genetically indisposed (pardon the imminent seafood puns) to pry open grimy immigration mollusks because they had more delectable fish to fry.  Why fuss and suss complicated immigration law issues when there were “sexier” antitrust, intellectual property, organized crime, and other more intellectually-stimulating, and career-enhancing cases to pursue or defend? — or so INS reasoned. The result:  INS and DOJ built what they thought would be a better mousetrap in the hope that litigants in civil immigration suits would beat a path of retreat from the APA’s door.  Thus was born in DOJ the Office of Immigration Litigation (OIL), a cadre of federal lawyers steeped, nerdlike, in the immigration-law dark arts of benefits-denials and deportation.  Often, and sadly, the OILy strategy has worked.  The Feds could deploy overpowering resources that few immigration litigators of employment-based APA cases could muster. Fast forward to 2019:  OIL attorneys simply cannot keep up quite as easily as before with the flood of immigration class actions and suits seeking to enjoin Executive Branch decisions to terminate Temporary Protected Status, DACA, and employment authorization for F-1 foreign students, and institute family-separation and child-imprisonment not to mention DOJ lawsuits asking federal courts to allow withholding of grant funds to sanctuary cities and states.  OIL’s docket will likely be overwhelmed still more with the anticipated onslaught of suits opposing the “national-emergency” border funding and property-confiscation orders issued last month. As of August, 2017, OIL employed a comparatively small team, comprised of approximately 250 attorneys and 60 support staff. Unsurprisingly, the immigration-litigation DeLorean is already headed back to the future on an OIL-slicked road. Immigration lawyers across the country report recently that USCIS is often caving on newly-filed APA suits, often even before DOJ provides an answer to the complaint, as Bloomberg Law’s Laura Francis reports (“Businesses Challenging Visa Denials Seeing Early Successes”). To be sure, some white flags of surrender may be waived strategically. USCIS has proposed (and is overdue) to issue BAHA-friendly H-1B regulations in the future.  Perhaps some court victories may be due to the agency’s desire to avoid federal court rulings that might restrict the agency from doing a full-BAHA rule in the near-term regulatory future. Flood-the-zone immigration litigation. Still, math is math, and resources are finite.  Just as DOJ cannot mint new i...