March 19, 2021
Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor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.
The Biden administration is willing to reconsider the objections or adverse decisions to foreign workers on visas like H-1B as informed by US Citizenship and Immigration Services (USCIS) Friday, March 12.
This was due to the three policy memos by the previous Trump administration which now have been rescinded.
The move is expected to provide relief to a large number of Indian IT professionals. Since, they were having a tough time dealing with the various policies and memorandums on non-immigrant work visas, in particular H-1B from the previous Trump administration.
In the same regards, on Friday USCIS announced “it may reopen and / or reconsider adverse decisions” on Form I-129. Basically, this is a petition for a Nonimmigrant Worker, made based on three rescinded policy memos. Usually, USCIS uses its discretion to accept a motion to reopen filed more than 30 days after the decision.
In case if it is filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier. Further, the decision was based on one or more policies in the three rescinded H-1B memoranda.
USCIS issued Policy Memorandum 602-0114 on June 17, 2020, which officially rescinded two prior policy memoranda.
On January 8, 2010, the first titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” was issued.
Later on, on February 22, 2018, the second “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” was issued.
Biden is willing to reconsider the objections or adverse decisions to foreign workers on visas like H-1B as informed by USCIS
USCIS issued Policy Memorandum 602-0142.1 on February 3, 2021, which officially rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer-related positions’,” issued on March 31, 2017.
Here, both Policy Memorandum, 602-0114 and 602-0142.1 mentioned that they apply to “any pending or new petitions, including motions on and appeals of revocations and denials of H-1B classification.”
According to the USCIS, a petitioner may request to reopen and / or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee.
Additionally, USCIS also has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.
Further, USCIS said, “Petitioners 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”.
Normally, USCIS will process motions based on filing order, and consistent with current policy guidance, according to the federal agency.