The Situation
Imagine a foreign national who established a software development company which won numerous national and international technology and business awards and then received multimillion-dollar investments to expand the company’s capabilities.
Imagine the same individual served in a leading role for a global leader in enterprise data management that was sold for over a half billion dollars. Consider this entrepreneur’s creation of patents used by these companies which are critical to their generation of hundreds of millions of dollars in annual revenue. Contemplate this individual’s authorship of influential textbooks, invitations received to speak at high-profile industry events across the globe, and the features in major trade publications with widespread circulations. And consider this individual’s induction in associations which demand outstanding achievements. Finally, consider the number of U.S. jobs created and the positive impact on our economy. Surely, an individual with this level of success has risen to the very top of his field of endeavor.
Yet, despite the incredible resume, the compelling documentary evidence highlighting the success, and testimonial letters from highly celebrated experts and specialists in the field, all demonstrating the entrepreneur’s storied career, contributions, and future benefit the United States, it is still somehow possible that U.S. Citizenship and Immigration Services (“USCIS”) may want to deny this software and technology expert’s first-preference EB-1A immigrant visa petition because they not extraordinary enough.
Options and Solutions
In these circumstances, there are limited options: (1) refile the case with USCIS with more evidence, (2) file an administrative appeal or motion to reconsider, or (3) file a lawsuit against the government for their faulty decision based on an arbitrary and capricious interpretation of the regulations and statute that violates the Administrative Procedures Act (APA).
For a recent Wolfsdorf Rosenthal LLP (WR immigration) client, the decision was easy – an APA lawsuit in federal district court requesting an order to set aside USCIS’ denial and compelling a new, proper decision. Our firm demonstrated in the complaint that USCIS misapplied its own regulations, offered explanations that ran counter to the evidence on the record, and failed to consider vast amounts of relevant evidence. The complaint was filed in early December 2020.
Fast forward six weeks to mid-January 2021. We learned that USCIS reopened the wrongfully denied case and issued an approval on the EB-1A petition, allowing the entrepreneur to move forward to obtain lawful permanent residency (a green card) to continue his incredible career and massive contribution to our country. Certainly, litigation does not move this quickly in all cases, but we were happy to see a successful (and correct) outcome for our client who is nothing short of extraordinary in his field. Our client commented that the success was due to his extraordinary lawyers. Well, thank you for those nice words.
Find Out More
For more information about extraordinary ability visas and other immigration options for start-up entrepreneurs, register for our webinar next week – Critical Immigration and Tax Update for Startups from Founding through IPO.
