If you’re reading this, you may have googled “H-1B visa court.” Sometimes the immigration practitioner feels he or she has had enough of the run-around from one of our nation’s immigration agencies and decides to go to Court to obtain relief on a non-immigrant employment application, otherwise known as an H-1B visa.

Provided all conditions precedent have been met and that you’ve exhausted whatever administrative remedies were required, just draft your complaint and off you go. However, if attorneys from the government get their way, you won’t be staying in district court very long.

8 C.F.R. § 103.5(a)(5) (“Motion by Service officer”) provides that the agency – United States Citizenship and Immigration Services (“USCIS”) – can reopen an application at any time and for any reason. At least that’s the interpretation government lawyers would urge upon the courts.

Then, the government will tell the Court that since the case was reopened, there is no longer a final agency decision.  The finality requirement of the Administrative Procedure Act (“APA”) serves a critical purpose – it preserves the separation of powers in the administrative context.  The doctrines of finality and ripeness are closely related; agency action is not “ripe” for judicial review until it is final. See American Petroleum Institute v. E.P.A., 683 F.3d 382, 386 (D.C. Cir. 2012); see also Wheaton College v. Sebelius, F.Supp.2d, 2012 WL 3637162 (D.D.C. Aug. 24, 2012).

It was this issue which the Seventh Circuit Court of Appeals addressed in Doctors Nursing & Rehab. Center v. Sebelius, 613 F.3d 672 (7th Cir. 2010).  That court ruled that if an agency could sua sponte reopen any decision which was subject to review by a court, “its decision, and motivation, would effectively be unreviewable because the courts would have no jurisdiction over the case once a final decision had been reopened.”  Doctors Nursing & Rehab. Center v. Sebelius, 613 F.3d at 679-680.  The result of such an affirmance, the Seventh Circuit concluded “would give the agency the unreviewable power to manipulate federal jurisdiction without any guarantee of efficiency.”  Id. 

In certain instances, USCIS has been successful in having cases dismissed as a result of post-filing reopening.  Net-Inspect, LLC v. US Citizenship and Immigration Services, No. C14-1514JLR (W.D. Wash. Feb. 28, 2015); True Capital Management, LLC v. United States Department of Homeland Security, No. 13-261 JSC (N.D. Cal. June 20, 2013).

Net-Inspect, LLC cited to True Capital Management, LLC which in turn relied heavily on Cabaccang v. USCIS, 627 F.3d 1313 (9th Cir. Cabaccang v. USCIS, 627 F.3d 1313 (9th Cir. 2010) and Gao v. Gonzales, 464 F.3d 728 (7th Cir. 2006).

In Cabaccang, the court dismissed the complaint because the plaintiffs were subject to removal proceedings at the time they filed their complaint.  In Gao, the plaintiff sought to have the Immigration Judge reopen his case, which was denied. After Gao filed his complaint, the Board of Immigration Appeals (“BIA”) reopened Gao’s case. The court ruled that since Gao got the relief he asked for, there was nothing left for the court to do.

Though there are clearly decisions which address the use of 8 C.F.R. § 103.5(a)(5) and its application in the context of a non-immigrant employment visa, those decisions appear to be in error and misconstrue the holdings of the cases they rely upon.

Last thing – in many types of immigration cases, the PACER docket is automatically sealed so that users can’t access the filings. Presumably this is done because immigration cases contain personal and private information of individuals. However, I’m attaching some of the filings from the case here if anyone wants to take a look behind the curtain.

Fighting an H-1B Visa Application in District Court
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