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USCIS May Reopen H1B Petitions Denied Under Trump Administration

| Mar 15, 2021 | H-1B Visas

U.S. Citizenship and Immigration Services today announced it may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos. A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee.

Three Rescinded H1B Policy Memos

The three policy memo affected are:

  • “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010.
  • “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.
  • “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

“Determining Employer-Employee Relationship for Adjudication of H1B Petitions, Including Third-Party Site Placements” and “Contracts and Itineraries Requirements for H1B Petitions Involving Third-Party Worksites” primarily affected IT service providers. “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions” was primarily used by USCIS to determine that fields that lacked a specific single degree requirement, e.g. some computer positions accept AA degrees, were generally disqualified from being H1B specialty occupations.

Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application.

USCIS will use its discretion to accept motions to reopen filed more than 30 days after the decision.

USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda. Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application. Additionally, USCIS recently extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals.

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For more information see https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos

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