USCIS may reopen H-1B petitions denied during Trump administration

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Move covers curbs on employer-employee relationship, third party worksites and computer related positions.

In a move that may bring great relief to Indian tech professionals, the Biden administration has announced that it may reopen H-1B petitions denied under three rescinded Trump policy memos.

In recent years, Indian professionals have been getting about two thirds of 85,000 H-1B visas issued annually to allow US companies to employ high skilled foreign workers in specialty occupations.

But several H-1B petitions were denied based on restrictions placed by the previous Trump administration under these memos.

The US Citizenship and Immigration Services (USCIS) Friday 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may reopen and/or reconsider adverse decisions on Form I-129, petition for a nonimmigrant worker, made based on three rescinded policy memos.

These three memos related to determining employer-employee relationship, the contract and itineraries requirement for H-1B workers placed at third party worksites and on H1B computer related positions.

READ: New H-1B rule to make it more difficult to hire foreign workers (October 6, 2020)

USCIS said it 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.

A petitioner may request USCIS to reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee.

In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation, it said.

Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor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

RELATED: H-1B archive

Additionally, USCIS recently extended through March 31, 2021, Covid-19 related accommodations that affect the deadlines for filing motions and appeals.

USCIS will generally process motions based on filing order, and consistent with current policy guidance, it said.

USCIS reminded petitioners that even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.

A USCIS decision may be reopened if based on one or more policies in these rescinded H-1B memoranda.

READ: More than 30 lawsuits filed against USCIS over H-1B rejections (May 17, 2019)

On June 17, 2020, USCIS issued Policy Memorandum 602-0114 (PDF, 379.71 KB), which officially rescinded two prior policy 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 (PDF, 124.09 KB), “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

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

PM-602-0142 (PDF, 258.68 KB), “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions’,” issued March 31, 2017.

Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 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.”

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