New Opportunity to Request Reopening H-1B Petitions Previously Denied
On Friday, March 12, 2021 the Secretary of the Department of Homeland Security announced H-1B petitions previously denied pursuant to one of three policies can now be requested to be reopened and reconsidered.
What Petitions Can Be Requested for Reconsideration?
Those H-1B petitions denied pursuant to one of three now-rescinded policy memoranda may be requested to be reconsidered. The rescinded policies are:
- 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.
Both of the above policies were officially rescinded on June 17, 2020 by USCIS Policy Memorandum 602-0114 (PDF, 379.71 KB); and
- PM-602-0142 (PDF, 258.68 KB), “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.
The above policy was officially rescinded on Feb. 3, 2021 by USCIS Policy Memorandum 602-0142.1 (PDF, 290.6 KB).
Both Policy Memorandum 602-0114 issued June 17, 2020 and Policy Memorandum 602-0142.1 issued February 3, 2021 apply to any pending or new H-1B Petitions that were revoked or denied based on one of the rescinded policies, including those in which motions or appeals of revocations or denials were filed.
Restrictions on timing of filing the request:
Normally, requests to reopen or reconsider must be filed within 30 days of the decision. However, the new announcement of March 12, 2021 states USCIS will generally use its discretion to accept a motion to reopen even if filed more than 30 days after the decision, provided it is filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H1B memoranda noted. Please see https://www.uscis.gov/news/alerts/uscis-may-reopen-h-1b-petitions-denied-under-three-rescinded-policy-memos.
Employers who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the original H-1B petition and the LCA on which it was based.
Provided the request complies with the timing requirements noted above, the employer who filed the petition may file the proper request that USCIS reopen and/or reconsider adverse decisions with the correct filing fee.
Also note USCIS has extended the COVID accommodations for filing deadlines through the end of March 2021.
Reopened Petitions Remain Subject to Other Eligibility Criteria:
Even when a motion to reopen/reconsider is filed, accepted for processing, and reviewed by USCIS, the petitions remain subject to all other eligibility criteria. The petition may be reopened and reconsidered removing the factors contained in the memos only; the petitions must still meet all other H-1B requirements.
Get Help to Seek Petition Reconsideration
As with other immigration matters, strict compliance is required, and all applicable deadlines must be met.
For assistance to file a request to reopen and/or evaluate H-1B options and criteria contact:
Barbara A. Marcouiller
Attorney at Law