USCIS May Re-Open H-1B Petitions Denied Under Three Rescinded Policy Memos
/On March 12, 2021, USCIS announced it may reopen and/or reconsider H-1B petitions denied based on three rescinded policy memos. USCIS will use its discretion to accept motions to reopen that are filed more than 30 days after the denial, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and if the denial was based on policies in the following rescinded H-1B memoranda:
HQ 70/6.2.8 (AD 10-24), “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; and
PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.
PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.
A petitioner may request that USCIS reopen and/or reconsider H-1B petitions that received adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. USCIS also has discretion to accept and consider untimely motions under certain circumstances, as allowed by regulation and form instructions.
Petitioners who received a denial for an H-1B petition based on the above listed rescinded policy memoranda should consider whether they have sufficient time in the validity period requested on the previously filed H-1B petition and labor condition application. Additionally, USCIS recently extended COVID-19 related accommodations that affect the deadlines for filing motions and appeals through March 31, 2021.
