USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos

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50 or so days into the brand new Biden administration and we’re starting to see some actual coverage modifications and a return to normalcy, a welcome incidence after the undue stress and burden wrought by Trump and his anti-immigration agenda. On Wednesday, DHS/USCIS introduced the long-awaited abandonment of the Public Cost rule, together with the Type I-944, and its accompanying headache and distress for immigration practitioners and immigrants alike. In the present day, USCIS has introduced that it could reopen and rethink beforehand denied H-1Bs, if the denial was primarily based on a number of of three rescinded coverage memoranda. These embrace two Trump-era insurance policies, generally known as the “Laptop Programmer memo” and the “Third-Get together Placement memo”, which the earlier administration used liberally as pretext to drastically enhance the speed of each onerous and burdensome RFEs and unjust denials.

Usually, petitioners could request reconsideration of a denial inside 30 days of the choice by submitting Type I-290B and paying the suitable submitting payment. It’s price noting right here that USCIS is stating that in addition they have discretionary authority to simply accept requests for reconsideration filed past that 30 day window.

We right here at Watson Immigration Legislation very a lot welcome such optimistic company motion and look ahead to a return to the times when USCIS was not on the lookout for causes to disclaim immigration advantages at each flip.

Copied from USCIS:

U.S. Citizenship and Immigration Providers in the present day introduced it could reopen and/or rethink hostile selections on Type I-129, Petition for a Nonimmigrant Employee, made primarily based on three rescinded coverage memos. USCIS will usually use its discretion to simply accept a movement to reopen filed greater than 30 days after the choice, if filed earlier than the tip of the validity interval requested on the petition or labor situation utility, whichever is earlier, and the choice was primarily based on a number of insurance policies within the rescinded H-1B memoranda under.

On June 17, 2020, USCIS issued Coverage Memorandum 602-0114 (PDF, 379.71 KB), which formally rescinded two prior coverage memoranda:

HQ 70/6.2.8 (AD 10-24), “Figuring out Employer-Worker Relationship for Adjudication of H-1B Petitions, Together with Third-Get together Website Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and
PM-602-0157 (PDF, 124.09 KB), “Contracts and Itineraries Necessities for H-1B Petitions Involving Third-Get together Worksites,” issued Feb. 22, 2018.

On Feb. 3, 2021, USCIS issued Coverage Memorandum 602-0142.1 (PDF, 290.6 KB), which formally rescinded:

PM-602-0142 (PDF, 258.68 KB), “Rescission of the December 22, 2000 ‘Steering memo on H1B pc associated positions’,” issued March 31, 2017.

Each Coverage Memorandum 602-0114 and Coverage Memorandum 602-0142.1 state that they apply to “any pending or new [H-1B Petitions], together with motions on and appeals of revocations and denials of H-1B classification.”

A petitioner could request that USCIS reopen and/or rethink hostile selections primarily based on the three rescinded coverage memos by correctly submitting Type I-290B, Discover of Enchantment or Movement, accompanied by the suitable payment. As well as, USCIS has the discretionary authority to simply accept and contemplate premature motions underneath sure circumstances as defined within the kind directions and permitted by regulation.

Petitioners who acquired an hostile choice on an H-1B petition primarily based on the now-rescinded coverage memoranda ought to contemplate whether or not there’s time remaining within the validity interval requested on the beforehand filed H-1B petition and the related labor situation utility.

Moreover, USCIS not too long ago prolonged by way of March 31, 2021, COVID-19 associated lodging that have an effect on the deadlines for submitting motions and appeals.

USCIS will usually course of motions primarily based on submitting order, and in line with present coverage steerage.

USCIS reminds petitioners that even when a movement to reopen or rethink is filed, accepted, and processed by USCIS, petitions will stay topic to all remaining and related eligibility necessities throughout any reopening or reconsideration.

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