Rami Fakhoury and Mark Levey

Copyright @2010 Fakhoury Law Group/ Rami Fakhoury



1. JURISDICTION - CDI Information Services: Dealing with the Presumption of Non-reviewability of USCIS Discretionary Determinations


The agencies have adopted a strategy of de facto rulemaking, in part, because they have assumed that abuse of discretion cannot be challenged in court in the context of non-immigrant visa petitions.  The ace up their sleeve in the court-stripping provisions of IIRIRA[1] found by a 2002 decision of the 6th Circuit,  CDI Information Services v Reno, 278 F3d 616, 619-20, and that decision's adoption by some other courts.[2]  That ruling has been cited to block hearings of substantive issues brought in federal court challenging discretionary denials of applications to USCIS, including H-1B and L-1 visa petitions.  But, that certainly does not foreclose all appeals of non-immigrant visa matters to the federal courts. 

In the seminal case to reach the Supreme Court in the wake of IIRIRA on the issue of retention of habeas review over removal orders, the justices ruled that they retain jurisdiction to review matters of law and constitutional issues.  In INS v. St. Cyr, 355 U.S. 289 (2001), Justice Stevens wrote for the majority that statutes should avoid constitutional abridgement, such as the right to habeas corpus. The decision also upheld the presumption that administrative proceedings remain under the review of federal courts.

Contrary to the agency's overly-broad interpretation of some statutory limits on jurisdiction, citing St. Cyr, the courts have and continue to hear related issues over "constitutional claims and questions of law" that have been expressly preserved by statute. For instance, in 341 F3d 590 Bravo v. Ashcroft (5th Cir., 2003), the 5th Circuit ruled: [3]:


IIRIRA's jurisdictional reach stripped the district court of habeas jurisdiction. Although the Court agreed that the barring of "judicial review" precluded direct review of the Attorney General's decision, it found that the respondent had properly sought a § 2241 petition, which may be used broadly to challenge orders of deportation as being "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2241(c)(3).

Importantly, the habeas petition in St. Cyr, 533 U.S. at 308, challenged a "pure question of law" whether new IIRIRA provisions should be applied retroactively. In construing the reach of habeas review, the Court noted the traditional "distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand." Id. at 307. [citation omitted]


Among the most daunting appeal issues is the threshold jurisdiction barrier thrown up by the CDI decision. That opinion found that subject matter review of L-1B denials was foreclosed by the courts-stripping provisions of IIRIRA to withhold review of most AG discretionary decisions.  That decision essentially holds that courts can pretermit - refuse to entertain the merits -- of most direct appeals of denials of visa petitions based in a claim that USCIS abused its discretion in its decision-making.    

There are differences with this opinion both within and between the circuits.  The laws involved were not clear in their drafting.  A section of IRRIRA of 1996, adding INA § 242(a)(2)(B), entitled "Denials of Discretionary Relief," states that the courts no longer have jurisdiction to challenge discretionary decisions rendered by the agency under § 1252 , a section of the Act entitled "judicial review of orders of removal". 

The CDI decision states that IIRIRA effectively barred review of all petitions, as well as orders of removal.  It held that, despite the fact that § 1252 is entitled "judicial review of orders of removal", the plain-language of 8 U.S.C. section 1252 (a)(2)(B)(ii) is not limited in its scope by its title and constitutes a divestment of jurisdiction for all discretionary decisions under Subchapter II of Chapter 12 of Title 8, covering §§ 1151-1378.   That includes initial grants and renewals of B, E, H and L nonimmigrant visa petitions, as well as I-140s - pretty much, the full-spectrum of business immigration petitions.

The 2005 REAL ID Act[4] reinforced and clarified the extent of jurisdictional barriers.  The second subpart of  section 1252 (a)(2)(B)(ii) restricts federal court jurisdiction over "any other decision or action ... the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security." It amended the scope of 8 U.S.C. § 242(a)(2)(B) so that it now applies "regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings."

Even in the case of removal proceedings falling under the REAL ID Act, in which Congress expressly imposed its desire that discretionary decisions pertaining to certain categories of aliens be held as unreviewable, REAL ID stipulated that Courts of Appeal may continue to extend review for basic constitutional issues, even for criminal alien removals, a function which the courts in fact continue to often perform.  The amendment expressly permits continued "review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." See, 8 USC § 1252(a)(2)(D); 8 U.S.C. §§ 1252(a)(1) and (b)(9); also, see, related, American Bar Association Commission on Immigration Report, pp. 7-8. http://www.abanet.org/publicserv/immigration/107c_due_processjud_rev.pdf 

What was left after REAL-ID was an explicit exception for "constitutional claims or questions of law", and ten courts of appeal have held that the bar to jurisdiction does not apply to questions of law such as the meaning of legal definitions found at §101 of the Act.  That means that issues such as the elevated evidence requirement read into the definition of "employer" and "control" by USCIS remain open to review.  In her widely-consulted treatise, Mary Kenney states[5]:   "242(a)(2)(B)(i) does not apply to non-discretionary questions of statutory eligibility for the enumerated immigration benefits". 

Kenney points out that another exception found is where there has been no actual discretion exercised, the courts retain jurisdiction.  This exception has been frequently cited by courts granting mandamus actions, particularly in Naturalization[6] and Adjustment cases where USCIS has delayed overlong final actions because FBI background checks have not been completed.  

Therefore, it is apparent that while courts may not find jurisdiction for complaints about the substantive individual product of a discretionary denial of a particular visa petition, they still should be willing to hear and rule on the general sufficiency of the rules applied, the procedures followed, and due process accorded, along with attendant issues such as the agency's interpretation of definitions employed, and the agency's construction of statute and regulations.  In appellate terms, that's about 80 percent of a typical administrative law case that one might brief, and includes the meat of any argument that an agency decision is ultra vires, or "beyond the powers" of an agency.  On this, Kenney writes [Id. 7]:

The Supreme Court has made clear that this subpart does not apply to issues that do not involve the exercise of discretion, such as a determination of the extent of the Attorney General's authority under the INA. Zadvydas v. Davis, 533 U.S. 678, 688 (2001). Thus, for example, courts would retain jurisdiction to determine if the agency action was ultra vires. Spencer Enterprises, Inc, v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (citing Zadvydas, 533 U.S. at 688). [emphasis added]

Of course, suits may also be brought against the agency under laws other than the INA, as well as sections of the Act outside of Title II.  Furthermore, the court stripping provisions pertain to the distinct jurisdiction and functions of the Attorney General and DHS, and thus the court may still rule on any act of discretion that more properly belongs to the Secretary of Labor.  That preserves an argument that goes to the issue of parts of the Act that govern DOL, including sections pertaining to enforcement of wage and hour provisions of the LCA. There is a clear division in statutory responsibility between DOL, which regulates and enforces § 212(n) of the Immigration and Nationality Act (INA) relating to LCAs, and U.S. Citizenship and Immigration Services (USCIS), which regulates and enforces INA § 214, entitled ''Admission of Nonimmigrants,'' and § 101(a)(15)(H)(i)(b), relating specifically to the H-1B visa

In addition, a suit may challenge agency actions under other statutes, such as the Administrative Procedures Act (APA), the Regulatory Flexibility Act (RFA), and the Family and Medical Leave Act (FMLA), not directly impacted by amendments to the INA.   


2. VENUE  

Despite the court-stripping impact of IIRIA and REAL-ID, courts continue to hear cases related to denials of visa petitions.  The line of jurisdiction stripping statutes culminating in the REAL-ID Act has restricted subject matter and venue for non-immigrant visa petitions.  In the latter, original jurisdiction and venue are vested in the US Courts of Appeal.

Nonetheless, the U.S. District Courts still continue to entertain such cases where they can be convinced that the matter does not involve the exercise of discretion.   A recent decision of the District Court for the DC Circuit, RCM Technologies, is extremely instructive as to the current treatment of these and related issues in a H-1B case.[7]  Even thought the court found for the agency on the merits of this H-1B case - the questions of jurisdiction and venue did not arise because the petitions had not yet been adjudicated at the time.  The court found that it could not find actual harm, as there were no denials, and thus this was not a final agency action to consider.   This was a highly technical case, and it did not immediately deliver the desired result, but it illustrates a creative approach to litigating these cases post REAL-ID, and may have set the stage for a change in actual agency policy, as will be shown below.


A court may find jurisdiction, only to rule against the plaintiff on the related issue of ripeness.  The leading case on ripeness is Abbott Laboratories v. Gardner (1967), which fashioned a two-part test for assessing ripeness challenges to federal regulations. The case is often applied to constitutional challenges to statutes as well. The Court said in Abbott Laboratories:

Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.[2]

The issue of ripeness is at the center of the case decided recently by the District Court for DC Circuit, RCM Technologies v DHS, D.C. Cir., Civil Case No. 09cv0650 (JDB), (April 8, 2009), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0650-13  .  That was an APA suit brought by a group of outplacement agencies on behalf of H-1B physical therapists seeking an injunction against a USCIS policy requiring Master's degrees for physical therapists, a requirement that isn't in the regulations.  That court ruled for DHS, finding inter alia that plaintiffs had not demonstrated the existence of an actual binding policy, had failed to show sufficiently grave imminent harm, and perhaps most crucially the case wasn't ripe for litigation.  RCM's petitions had been filed, but not yet denied by the USCIS Service Center. 

In that case, defendant DHS raised two threshold reasons why plaintiffs did not ultimately succeed with their suit. First, the defendant agency successfully argued that the plaintiffs' challenge to an alleged "policy" is not justiciable under the APA; plaintiffs must instead challenge individual denials of specific visa applications. Second, defendants contended that the "policy" at issue here does not constitute "final agency action" and hence is unreviewable under the Administrative Procedure Act. 5 U.S.C. § 704.  The court found that each of defendants' arguments had merit, and the action was dismissed. That court commented[8]:


Because plaintiffs challenge the CIS "policy," rather than challenging a denial of a specific visa application, they are not likely to succeed on the merits of their claims. Likewise, plaintiffs cannot succeed on the merits because the challenged "policy," even as described in plaintiffs' declarations, is not "binding," and hence does not constitute "final agency action" reviewable under the Administrative Procedure Act.


"[T]he court was not persuaded that the plaintiffs were likely to succeed in their action, one of four prerequisites . . ."      




That decision is also notable, in that it highlights the issue of whether an agency policy amounts to a  "de facto rule or binding norm" that might be challenged as a "final agency action" under the APA, as stated in Center for Auto Safety v. NHTSA.  The District Court for the D.C. Circuit identified the weaknesses in plaintiff's case in the RCM matter that led the court to dismiss in that instance: 

In Center for Auto Safety v. NHTSA, 452 F.3d 798, 806 (D.C. Cir. 2006), the court held that a challenged action must "either (1) reflect 'final agency action,' 5 U.S.C. § 704, or (2) 'constitute a de facto rule or binding norm that could not properly be promulgated absent the notice-and-comment rulemaking required by § 553 of the APA."

First, the petitions in the RCM case had been filed, but not yet denied.  The plaintiff in that case did not claim the policy at issue - adjudicators at the Western Service Center had been given "clearance" to require master's degrees from medical therapists - was either national or binding.  That is an important point.  Under the standards laid down in RCM, litigation of the Defensor/Neufeld dicta would need to be shown that application has been nationwide and, as applied, has produced actual nationwide economic harm, and had been binding policy on both adjudicators and petitioners.  Discovery in that case would show that literally thousands of RFEs and denials cite Defensor for the requirement that petitioner-employers thought to be involved in outsourcing produce detailed itineraries and otherwise demonstrate control over their beneficiary-employees.  While some such cases were subsequently approved, petitioner would demonstrate that application of the standard, itself, is inconsistent with statute and regulation, and has resulted in, at minimum, unnecessary delay.   Finally, a plaintiff may also note in reference to RCM that USCIS subsequently withdrew from its previous practice with regard to requiring Master's degrees from H-1B Physical Therapists - which was the issue in that case -- and retroactively approved those and similar cases.[9]

Since the decision, USCIS has backed away from its de facto policy of requiring Masters degree from PTs.  For some reason, perhaps the threat that this decision might be overturned on appeal or a better case presented (perhaps in a more favorable venue), has prompted the agency to correct its policy, and USCIS is now soliciting Motions to Reopen cases that were previously denied. 

There's another notable case that should give one some confidence that litigation of similar issues might be successful.  In 2007, the U.S. District Court for the Northern District for California issued an injunction in AFL v Chertoff that enjoined DHS from implementing its final rules enforcing no-match letters in I-9 verification.   See, American Federation of Labor v Chertoff, 552 F. Supp. 2d 999, *; 2007 U.S. Dist. LEXIS 75233, **; 155 Lab. Cas. (CCH) P10,925, No. C 07-04472 CRB  

In its decision, the District court found:

In this Court's opinion, granting plaintiffs' motion is appropriate because they have raised serious questions whether: (1) the rule is arbitrary and capricious because DHS failed to supply a reasoned analysis for the agency's new position that a no-match letter is sufficient, by itself, to put an employer on notice of an employee's


5. ADDITIONAL REQUIREMENTS FOR A FEDERAL INJUNCTION:  Showing of Substantial Damages or Imminent Harm

Another prerequisite to successful litigation, if an injunction is sought, is a showing of substantial damages or imminent harm to the plaintiff if an injunction is not granted.  That should not be the most difficult hurdle in these types of cases, but as the RCM decision shows, good preparation and solid evidence are essential. 

These issues reflect a wider restrictive trend and barriers to trade in services[10] that have been frequently commented about by members of the Immigration bar[11], as well as by business media in India[12] and in China.   The China Post recently carried a Reuters report that as many as half the recent foreign-born graduates of top U.S. electrical engineering programs are leaving the United States for job offers abroad, a dramatic development that threatens the reverse the "brain-drain" that has for decades favored American industries.[13]  Some companies have also noted undue agency-imposed restrictions on issuance of B-1 visas for short-term business travel and the discriminatory withholding of Optional Practical Training (OPT) from certain industries.[14]  Related issues also impact programs administered by USDOL, including the H-1B Labor Condition Attestation (LCA) and permanent labor certification (PERM) programs.

This is not merely a complaint about lack of proper procedure and defective agency process.  The economic damages resulting from an improperly high burden of documenting employment requirements for all positions at client sites are real.  Indeed, it has proven virtually impossible in the IT consulting industry to provide a detailed client site itinerary for all workers going forward for the entire period of the petition, as much as three years.  That de facto rule unfairly disadvantages some companies, and an entire industry, where the duration of employee assignments at client sites may be less than long-term and predictable.  This discriminatory and unfair outcome was recognized by the Service in Proposed Regulations and a series of policy directives by legacy INS, binding guidance that still stands and have never been formally superceded by DHS regulation, rulemaking or other public policy pronouncements.  There has, indeed, been de facto policy change and informal rule-making, but without allowing opportunity for public comment, as the APA requires.

Regardless of the merits of the Defensor decision, USCIS has read into this case the authority to apply such a test across-the-board to virtually all petitioner-employers who place their H-1B workers at client sites.  Defensor is cited in issuance of RFEs in virtually every case where H-1B workers will work at client sites, and the burden of evidence demanded is excessive and contrary to existing regulatory authority and binding directives.

Without complying with legal procedures, USCIS has done great economic damage to an entire industry, and that, as will be shown, is simply not permissible under American law.

[1] For a capsule history of the court-stripping provisions of AEDPA and IIRIRA see, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2451.01A.

[2]  The 6th Circuit CDI decision and those that follow it construe that the phrase "this subchapter" refers to

subchapter II of Chapter 12 of Title 8, U.S.C. §§ 1151-1378. See, e.g., Zafar v. U.S. Attorney General, 426

F.3d 1330, 1334 (11th Cir. 2005); Onyinkwa v.  Ashcroft, 376 F.3d 797 (8th Cir. 2004). See also Van

Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999).


[4]  See, [H.R.1268.ENR], Emergency Supplemental Appropriations Act for Defense, the Global War on   Terror, and Tsunami Relief, 2005 (Enrolled as Agreed to or Passed by Both House and Senate, became P.L. 109-113 on 05/11/2003), SEC. 106, . JUDICIAL REVIEW OF ORDERS OF REMOVAL, amending Section 242(a) of the Immigration and Nationality Act (8 U.S.C. 1252), http:// thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00418, HR 418 - Search Results - THOMAS (Library of Congress)


[5] See, Mary Kenney, "FEDERAL COURT JURISDICTION OVER DISCRETIONARY DECISIONS AFTER REAL ID: MANDAMUS, OTHER AFFIRMATIVE SUITS AND PETITIONS FOR REVIEW", American Immigration Law Foundation Practice Advisory, (Updated April 5, 2006), http://www.aila.org/content/default.aspx?bc=9418%7C20856%7C29221%7C17559

[6] As Kenney points out, Op cit. at 5, "§ 242(a)(2)(B)(ii) states that it applies to agency decisions or action, 'the authority for which is specified under this title' to be discretionary. The 'title' referred to is Title II of the INA. Naturalization provisions do not appear in Title II but rather in Title III of the INA. See INA § 310 et seq., 8 U.S.C. § 1421 et seq. Consequently, INA § 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization Decision."


[7] See, RCM Technologies v DHS, D.C. Cir., Civil Case No. 09cv0650 (JDB), (April 8, 2009), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0650-13  .

[9] See,  USCIS Issues Information to Employers Whose H-1Bs for Health Care Specialty Occupation Have Been Denied (.pdf 39 KB), (July 17, 2009), USCIS today issued guidance to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009. AILA Doc. No. 09071763.

[10] See, e.g.,  Sarah Anderson,  U.S. Immigration Policy on the Table at the WTO,  December 3, 2005, http:// www.globalpolitician.com/21446-immigration

[11] See, e.g.,  Laurie Grossman, Employment Changes and H-1Bs: Guiding Principles and Recent Developmentshttp://www.wildesweinberg.com/uploadedfiles/AILA_H1_bs.pdf

[12] See, e.g., Rachana Khanzode, Indian Express Finance, "Proposed H-1B curbs to hit Indian IT the Most", April 25, 2009, http://in.biz.yahoo.com/090424/50/bathel.html 

[13] See, e.g., David Lawsky, Reuters, " U.S. immigration rules blaimed for high-tech brain drain", June 25, 2009, http:// www.chinapost.com.tw/business/americas/2009/06/25/213702/U.S.-immigration.htm

[14] See, e,g,, Securities Industry and Financial Markets Association, SIFMA News, April 4, 2008,   http://www.sifma.org/news/news.aspx?id=3570