ILBSG SUCCESS STORY: Request for Sua Sponte Review as an Alternative to Lengthy MTR Processing

Author: Julia Funke, Esq. 

During these uncertain times surrounding the COVID-19 pandemic, many clients are finding themselves in seemingly impossible scenarios. For instance, when pending H-1B petitions are denied after the I-94 has already expired, H-1B beneficiaries are left with few available options.  The H-1B petition cannot be re-filed since the I-94 is expired, but a cap exempt case for consular processing isn’t a great option either since premium processing is not available and current travel restrictions and consulate closures mean visa stamping isn’t possible. While a Motion to Reconsider (MTR) can be filed, MTRs don’t provide status or work authorization and take 8-12 months on average for a decision. Even then, approval isn’t guaranteed or even likely. This effectively means H-1B beneficiaries are stuck in the U.S. unable to travel out, but without valid immigration status meaning they could suffer long term immigration consequences down the road. We know these are stressful times – ILBSG is here to help.

Recently, ILBSG had a client who received a denial on an H-1B amendment + extension petition after the I-94 expired. The denial notice was based on a holding by USCIS that the end client contracts did not provide sufficient detail, quoting language verbatim from the 2018 Policy Memorandum. The client letter confirmed all details, but USCIS still denied the petition on the basis those details were not included in the signed contracts. Unfortunately, this is not an uncommon reason for denial – USCIS cites this as the reason for denial quite often. Rather than file an MTR, which would not quickly reconcile the beneficiary’s lapsed status, ILBSG instead sent a formal request to USCIS for sua sponte review of the denial, claiming clear government error. ILBSG argued that following the U.S. District Court for the District of Columbia’s decision in ITServe Alliance, Inc. v. United States Citizenship and Immigration Services, USCIS can no longer rely on the 2018 Policy Memorandum as it has been struck down. We argued that any decision based on that policy memo is now beyond USCIS’ authority and represents a clear error of law. Today, 9 days after our written request was received by USCIS, the case has been reopened and approved.

We are pleased to announce this positive outcome during these uncertain, stressful times. This means there is another option for H-1B beneficiaries who may find themselves in similar positions. If a denial is based on clear government error, a request for sua sponte review may be an available option. Particularly now, while there are travel restrictions and premium processing is unavailable, this may be a route worth exploring. If you have specific questions about the availability of this option for any of your cases, please reach out to an ILBSG attorney today.

As always, ILBSG remains committed to rendering the highest quality services to its clients. We will continue to explore innovative solutions and zealously advocate for our clients through these difficult times.