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USCIS May Reconsider H-1B Petitions Denied Based on Three Rescinded Policy Memos
BMK Group

U.S. Citizenship and Immigration Services (USCIS) announced it will revisit certain adverse decisions issued on H-1B petitions, following the rescission of three of its policy memos. The rescissions lessen petitioners’ burden in providing documents related to the employer-employee relationship, H-1B workers placed at third-party worksites, and H-1B computer-related positions. If your petition for an H-1B Non-Immigrant Worker Visa was denied or revoked based on one of the rescinded policy memos, you may be able to apply to have the file reopened and reconsidered. 

Policy memos

On June 17, 2020, USCIS issued a policy memo rescinding two prior policy memos: 

  • HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” which had been in place since 2010; and 
  • PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” which had been issued in 2018. 

On Feb. 3, 2021, a third policy memo, PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions,’” was rescinded after being in place since 2017. 

The new policies apply to any pending or new H-1B petitions, including appeals of revocations or denials of H-1B classification.

Employer-employee relationship and third-party worksites 

The memo issued last June limited the evidence that employers must submit to show that an employer-employee relationship exists with the beneficiary. To establish an employer-employee relationship, the petitioner must document that it has the ability to “hire, pay, fire, supervise or otherwise control the work of” the beneficiary. The memo clarified the following: 

  • The petitioner need only document one of those factors.
  • The attestations on the H-1B petition and accompanying labor condition application suffice as credible evidence that a bona fide job offer exists at the time of filing, if all other eligibility requirements are met. 

The June memo also revised guidance related to H-1B petitions involving employees who will work at one or more third-party worksites. The memo clarified the following:

  • The employer will no longer be required to submit contracts or legal agreements with third parties to document the existence of an employer-employee relationship.
  • If the employer has established that the beneficiary will be employed in a specialty occupation, then the employer no longer has to provide evidence of the H-1B worker’s day-to-day assignments to document that sufficient specialty occupation work exists for the employee.

Computer-related positions

The rescinded 2017 memo stated that not all positions for computer programmers meet the specialty occupation requirement under the H-1B program. The memo noted that a petitioner had the burden of establishing that a computer programmer position was a specialty occupation position. 

That memo was rescinded following a U.S. Court of Appeals for the Ninth Circuit decision in Innova Solutions v. Baran, in which the Court overturned USCIS’s denial of an H-1B petition as arbitrary and capricious. USCIS stated it was rescinding the earlier memo to ensure consistent adjudication of H-1B petitions. 

When to file

If you believe your denial or revocation falls into one of these categories, you must take timely action. Motions, using Form I-290B, Notice of Appeal or Motion, must be filed more than 30 days after the decision, but before the end of the validity period that was requested on the petition or labor condition application, whichever is earlier. Motions must be filed by the petitioner or an attorney for the petitioner and must include the appropriate fee. 

Note that COVID-19 related accommodations for filing deadlines have been extended through the end of March 2021. Further, USCIS may exercise discretion under certain circumstances to accept and consider untimely motions. 

Barst Mukamal & Kleiner’s immigration lawyers provide comprehensive immigration law services and can assist with the filing of motions to reopen and reconsider. Clients with questions regarding H-1B Non-Immigrant Worker Visa petitions should contact their Barst attorney. For general inquiries or to set up a consultation, please visit https://bmkllp.com/contact-us/

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