On 3/12/2021, the U.S. Citizenship and Immigration Services announced it may reopen and/or reconsider H-1B denials based on three rescinded policy memos. Normally, such motions to reopen/reconsider may only be filed within 30 days of the denial.
The rescinded policy memoranda, listed below, resulted in many denied H-1B petitions over the past few years:
- Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements. (2010) This memorandum resulted in many H-1B denials under the stated reason that USCIS could not determine if there was an employer-employee relationship and therefore whether the position was a specialty occupation.
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites. (2018) This memorandum required employers to provide all contracts and itineraries if an employee was to perform services at a third-party client site.
- Guidance memo on H1B computer related positions. (2017) This memorandum advised that a Programmer was not to be considered a specialty occupation that was eligible for H-1B status and resulted in the denial of countless H-1B petitions on behalf of Computer Programmers as well as Software Developers and similar occupations.
Petitioners who received denials of H-1B petitions based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested in those previously filed H-1B petitions to make a motion to reopen/reconsider worthwhile. Keep in mind that it will likely take the USCIS several months to process such motions.
