USCIS announces relief for denied H-1B petitions

USCIS announced that certain H-1B petitions which were denied may be eligible for review and reconsideration. The notice specifically concerns those petitions denied based on three rescinded policy memos.

USCIS stated that 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or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda…”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;
• PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.
• PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

Petitioners must take action to obtain review of those petitions. That review can be initiated by “filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee.” USCIS may consider those forms I-290B even though they would normally be considered late. However, USCIS advised that those “who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor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.”