USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memoranda

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USA News – The United States Citizenship and Immigration Services announced today that it may reopen and / or reconsider decisions adverse to Form I-129, Petition for a Nonimmigrant Worker, based on three policy memoranda that have been rescinded. USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if it is filed before the end of the validity period requested in the work condition petition or application, whichever is earlier, and the decision. The rescinded H-1B memoranda listed below were based on one or more policies.

On June 17, 2020, USCIS issued Policy Memorandum 602-0114, which officially rescinded two previous policy memos:

HQ 70 / 6.2.8 (AD 10-24), “How to Determine Employer-Employee Relationship for Adjudication of H-1B Petitions Including Placements in Third Party Locations (Referring to Chapter 31.3 (g) (16) of the Field Manual for Adjudicators) ”, issued on January 8, 2010; Y

Policy Memorandum 602-0157, “Contract and Schedule Requirements for H-1B Petitions Involving Third Party Workplaces,” issued February 22, 2018.

On February 3, 2021, USCIS issued Policy Memorandum 602-0142.1, which officially rescinded:

Policy Memorandum 602-0142, “Termination of the Guidance Memorandum on H-1B Positions Related to Computer Science of December 22, 2000”, previously issued on 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 petition], including motions and appeals of revocations and denials of H-1B classification.”

A petitioner could request that USCIS reopen and / or reconsider adverse decisions based on the three rescinded policy memoranda by submitting the appropriate Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. Additionally, USCIS has the discretionary authority to accept and consider untimely filed motions under certain circumstances as explained in the form instructions and permitted by regulation.

Petitioners who received an adverse decision on an H-1B petition based on the policy memoranda that are now rescinded should consider whether there is still time left in the validity period requested in the previously filed H-1B petition and the pertinent employment status request.

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

USCIS generally processes motions based on the order of filing and in accordance with current policy guidelines.

USCIS reminds petitioners that even if a motion to reopen or consider is filed, accepted, and processed by USCIS, the petitions will remain subject to all other relevant eligibility requirements during any reopening or reconsideration.

 WORLD NEWS SUPERFAST USA News – The United States Citizenship and Immigration Services announced today that it may reopen and / or reconsider decisions adverse to Form I-129, Petition for a Nonimmigrant Worker, based on three policy memoranda that have been rescinded. USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if it is filed before the end of the validity period requested in the work condition petition or application, whichever is earlier, and the decision. The rescinded H-1B memoranda listed below were based on one or more policies. On June 17, 2020, USCIS issued Policy Memorandum 602-0114, which officially rescinded two previous policy memos: HQ 70 / 6.2.8 (AD 10-24), “How to Determine Employer-Employee Relationship for Adjudication of H-1B Petitions Including Placements in Third Party Locations (Referring to Chapter 31.3 (g) (16) of the Field Manual for Adjudicators) ”, issued on January 8, 2010; Y Policy Memorandum 602-0157, “Contract and Schedule Requirements for H-1B Petitions Involving Third Party Workplaces,” issued February 22, 2018. On February 3, 2021, USCIS issued Policy Memorandum 602-0142.1, which officially rescinded: Policy Memorandum 602-0142, “Termination of the Guidance Memorandum on H-1B Positions Related to Computer Science of December 22, 2000”, previously issued on 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 petition], including motions and appeals of revocations and denials of H-1B classification.” A petitioner could request that USCIS reopen and / or reconsider adverse decisions based on the three rescinded policy memoranda by submitting the appropriate Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. Additionally, USCIS has the discretionary authority to accept and consider untimely filed motions under certain circumstances as explained in the form instructions and permitted by regulation. Petitioners who received an adverse decision on an H-1B petition based on the policy memoranda that are now rescinded should consider whether there is still time left in the validity period requested in the previously filed H-1B petition and the pertinent employment status request. Additionally, USCIS recently extended, through March 31, 2021, special accommodations related to COVID-19 that affect deadlines for filing motions and appeals. USCIS generally processes motions based on the order of filing and in accordance with current policy guidelines. USCIS reminds petitioners that even if a motion to reopen or consider is filed, accepted, and processed by USCIS, the petitions will remain subject to all other relevant eligibility requirements during any reopening or reconsideration.
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