Problem:

Client is an IT staffing/consultancy company. Its employees are deployed to end client locations throughout the United States. In April 2019, client filed a CAP subject H-1B for FY2020. Despite submission of all the contracts, work orders, itinerary of services and several corroboration letters from the end user, USCIS denied the petition for failure to demonstrate an employer-employee relationship. 

Solution:

We advised our client that it had grounds to file an APA lawsuit against USCIS. Not only have we met the burden of proof by the preponderance of the evidence standard, USCIS has arbitrarily and capriciously denied petitions by misapplying the law. We also advised our client that since this case was denied and denied again after the motion to reopen/reconsider was granted, this employee has to stop working, and will have to maintain nonimmigrant status to remain in the U.S.

On March 12, 2021, USCIS announced that three policy memos have been rescinded and that USCIS may re-open H-1B petitions denied under these rescinded memos. We quickly determined that this announcement applied to our client’s situation, and we advised the client to file another Motion to Re-Open pursuant to this announcement. 

Outcome:

2 months after filing the motion to reopen, the H-1B petition that was denied in 2019 was finally approved. The employee was granted a change of status.