On Friday, March 12, 2021, U.S. Citizenship & Immigration Services (USCIS) announced that it may reopen and/or reconsider the denial of previously filed H-1B visa petitions, in cases where the denial was based on one or more of three since-rescinded policy memos. These rescinded policy memos include the following:
- 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;
- 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.
Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142 state that they apply to “any pending or new [H-1B Petitions], including motions on and appeals of revocations and denials of H-1B classification.”
Hence the guidance indicates petitioners may request that USCIS reopen and/or reconsider adverse decisions based on the rescinded policy memos by filing the motion or notice of appeal. Even if the motion is untimely (normally to be filed within 30-60 days) USCIS has the discretionary authority to consider untimely motions if circumstances support the same.
USCIS will generally process motions based on filing order but motions can take a couple of months to several months hence employers and beneficiaries must be patient. This reconsideration is welcoming news to H-1B employers who lost valuable employees to inconsistent USCIS policy which did not follow the respective federal rulemaking guidance. The new administration’s positive stance towards immigration has enabled the review of prior decisions that weighed negatively against prior case rules and history.
We, at Emandi Law Firm, will keep you posted with further updates.