Business Immigration and Federal Litigation – Where to Start?

Like many other business immigration attorneys, federal litigation was not a tool I had frequently considered as an option for my clients.  In fact, I discarded my copy of the Federal Rules of Civil Procedure (FRCP) from law school after six years of practicing business immigration, thinking that I would never litigate in federal court.  I had enough on my plate already and wasn’t looking beyond it.

Then, just weeks (yes, literally weeks) after I had discarded my FRCP copy, a fateful H-1B cap subject denial on the basis of whether Market Research Analysts are specialty occupation positions crept into my life, and I was suddenly diving in to the only option that my client had:  challenge the H-1B denial in federal court.  The recycling had already been taken out so I relied on the resources of AILA and the American Immigration Council, as well as the knowledge of colleagues, as I learned how to challenge USCIS in federal court on an H-1B denial. I read and reread materials. I prepared and ran ideas by my more experienced fellow AILA members, including attorneys in the Legal Department at the American Immigration Council. This effort was exacting – not only are there the aspects of procedural process, and learning how to electronically file and serve the Attorney General, but also how do I advise my clients on what to expect in federal litigation?  How do I guide them on issues like costs, confidential information, timelines, and potential outcomes?  I felt a bit at sea but thankfully got through it. In the end, I won, to my great delight and the happiness of my client.

The reality we are all facing right now is that USCIS adjudications are seemingly only getting more strict, and more arbitrary. As highlighted in a recent blog post by immigration attorney Sandra Feist, a denial of a previously pretty-much-slam-dunk H-1B petition could be in the mail to you right now. It’s a good time to add federal litigation to your toolbox.

The good news is that there is a conference designed to provide exactly those tools – the Fearless Lawyering: Business Immigration Litigation conference on September 15, 2017 in Portland, Oregon. Organized by the American Immigration Council and co-sponsored by AILA, this is an intensely focused opportunity for business immigration lawyers to learn litigation. This is a resource that I so very much wish existed when I litigated my first H-1B case: a daylong interactive conference which will include a case-study, mock client meeting, interactive sessions on filing mandamus and APA actions and motions for summary judgment, and a mock oral argument.

As AILA members, we’re facing challenges every day to do our best by our clients in an uncertain and changing world. I for one am polishing every tool in my toolbox!

by Olivia Lee