Success Story: Federal Lawsuit Forced USCIS to Concede and Reverse Course on An Improper Denied I-130 Petition (February 2021)

In a February 2021 approval decision, USCIS granted, expedited, and transferred our client's I-130 Petition to the National Visa Center (“NVC”) for visa processing in record time (less than 6 days from the time of our Noticed Receipt.) Our firm is extremely pleased with the results of our advocacy efforts on behalf of our client, who has been unduly burdened with delays and separation from his family for over 4 years.

In 2017, Petitioner (U.S. Citizen) filed an I-130 spousal petition based on marriage. USCIS approved the I-130 petition and the case was sent for consular processing. However, during the immigrant visa application interview, the visa was denied, claiming the marriage was not valid due to the Petitioner’s inability to produce a valid divorce decree from his previous marriage. The case file was sent back to USCIS for revocation. By June 2020, USCIS finally issued a revocation of the I-130 petition wrongfully alleging that Petitioner’s marriage was null and void.

Previously, litigation in the state court took place where Petitioner’s original divorce matter convened. Petitioner successfully sought the family court’s ruling Nunc Pro Tunc of Petitioner’s divorce termination. Despite the efforts to submit all relevant case law, accompanying memorandum of points and authorities, and supporting documentation on the issue of validity of Petitioner’s divorce decree, USCIS remained patently unresponsive to the record and legal authorities as submitted.

Petitioner was faced with options to refile the I-130 or submit his appeal to the Board of Immigration Appeals (“BIA.”) Both options would entail extremely long processing times with no clear resolution. Attorney Nguyen D. Luu devised an aggressive litigation strategy to immediately put forth the Petitioner’s case in federal court to seek timely adjudication of the matter. 

On August 2020, our firm filed a lawsuit on behalf of Petitioner in federal court against the Department of Homeland Security and USCIS challenging USCIS’s wrongful decision based on the agency acting arbitrary and contrary to the laws in adjudicating Petitioner’s case. Shortly after USCIS was duly served with our lawsuit, the opposition (government attorney) immediately contacted our office regarding our cause of action. Through substantial efforts in negotiating a favorable stipulation, USCIS agreed to reverse course and concede on issues of law and fact to support the validity of Petitioner’s marriage pursuant to California law. Conditions put forth required USCIS to expedite the adjudication of our client’s new I-130 petition. As a result of our zealous representation, just less than 6 days after USCIS accepted our I-130 Petition, the case matter was approved and immediately transferred to the National Visa Center for consular processing. Petitioner’s spouse is waiting to be scheduled for the immigrant visa interview, which is expected to be promptly approved.

While the law entrusts the government with vast powers to adjudicate immigration petitions, this power is not without limit. The Administrative Procedure Act (“APA”) requires the government to adjudicate cases in a non-arbitrary and non-capricious manner. USCIS is not permitted to apply laws not authorized by regulation or agency practice, as it would constitute an improper ultra vires action. Furthermore, the agency cannot ignore or discount the evidence on the record without a rational basis, as such discourse would be arbitrary, capricious, or an abuse of discretion. 

Conclusion: When an immigration petition is denied, it is imperative to consult with an experienced immigration attorney to consider all avenues of relief, including federal litigation, which may be one of the effective approaches to shorten the processing time. While filing an appeal, form EOIR-29 or I-290B with the BIA or Administrative Appeals Office (“AAO”) is an option, this may lead to much longer processing times, resulting in additional delays to your case.

NOTE: These success stories provide general information only. They are not legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.