Many businesses sponsoring H-1B specialty occupation worker or L-1 intra-company transfer petitions have experienced the frustration of unfair denials.  Now, Information published in the Citizenship and Immigration Services Ombudsmen Annual Report 2014 (“Report”) confirms that appeals from these determinations are almost always an exercise in futility.

Cases that are not approved can be appealed to the Administrative Appeals Office (AAO), which has the authority to review approximately 55 different immigration applications and petitions, including H-1Bs and L-1s.  Concerns have mounted over the AAO’s autonomy and whether it is offering an independent review of a denied case, or simply rubber-stamping the USCIS denial.  The Report indicates there may be grounds for those concerns.

According to the Report, in 2013, H-1B cases appealed to the AAO were sustained (meaning that the government’s denial was overturned) only 1% of the time. The government reviewed a total of 870 H-1B cases in 2013.   Of those, it sustained 12. On only a slightly less abysmal note, the AAO approved appeals in L-1 cases for  just   7% of the time. (The government reviewed 508 cases and sustained 37.) By affirming the government’s decision between 93% – 99% of the time, the AAO does not appear to offer a level playing field for petitioners.

Not every appeal has merit, but the percentage of appeals that are sustained appears to many to be unduly deferential to initial determinations of questionable merit.

An AAO appeal is not required. There are other options.  Businesses can choose to re-file the case with USCIS, although filing fees need to be paid again. Fortunately, there is no rule that says you can only file once. Another option is appealing directly to federal court, which may afford a more level playing field. Knowing the odds of succeeding at the AAO are slim, businesses faced with adverse determinations should weigh other options.