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USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos

50 or so days into the new Biden administration and we are beginning to see some real policy changes and a return to normalcy, a welcome occurrence after the undue stress and burden wrought by Trump and his anti-immigration agenda. On Wednesday, DHS/USCIS announced the long-awaited abandonment of the Public Charge rule, including the Form I-944, and its accompanying headache and misery for immigration practitioners and immigrants alike. Today, USCIS has announced that it may reopen and reconsider previously denied H-1Bs, if the denial was based on one or more of three rescinded policy memoranda. These include two Trump-era policies, commonly referred to as the “Computer Programmer memo” and the “Third-Party Placement memo”, which the previous administration used liberally as pretext to drastically increase the rate of both onerous and burdensome RFEs and unjust denials.


Generally, petitioners may request reconsideration of a denial within 30 days of the decision by filing Form I-290B and paying the appropriate filing fee. It is worth noting here that USCIS is stating that they also have discretionary authority to accept requests for reconsideration filed beyond that 30 day window.


We here at Watson Immigration Law very much welcome such positive agency action and look forward to a return to the days when USCIS was not looking for reasons to deny immigration benefits at every turn.


Copied from USCIS:


Release Date

U.S. Citizenship and Immigration Services today announced it may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos. USCIS 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or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.

On June 17, 2020, USCIS issued Policy Memorandum 602-0114 (PDF, 379.71 KB), which officially rescinded two prior policy memoranda: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; and
  • PM-602-0157 (PDF, 124.09 KB), “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

On Feb. 3, 2021, USCIS issued Policy Memorandum 602-0142.1 (PDF, 290.6 KB), which officially rescinded:

  • PM-602-0142 (PDF, 258.68 KB), “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 state that they apply to “any pending or new [H-1B Petitions], including motions on and appeals of revocations and denials of H-1B classification.”

A petitioner may request that USCIS 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. In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.

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.

Additionally, USCIS recently extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals.

USCIS will generally process motions based on filing order, and consistent with current policy guidance.

USCIS reminds petitioners that even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.



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