Overview
U.S. Citizenship and Immigration Services (USCIS) announced that it may reconsider denials made on H-1B petitions if the denial was based on one of three rescinded policy memos.
Two of the memos rescinded by USCIS increased the documentation requirements for applicants and authorized more agency scrutiny of H-1B petitions involving the placement of beneficiaries at third-party worksites. Consequently, more H-1B petitions were denied.
The third memo narrowed the definition of a specialty occupation, which led to an increase in application denials for positions that were previously approved for H-1B classification. Additionally, the 2017 memo resulted in more Requests for Evidence (RFEs) for computer programmers who were seeking H-1B status.
What Should Employers and Applicants Know?
Petitioners can request to have the denial of their petition reconsidered by properly filing Form I-290B, Notice of Appeal or Motion, along with the corresponding fee, even if the usual 30-day period for filing the Form I-290B has passed, if the denial resulted from the application of any of the three rescinded policy memos. Petitioners who received a denial based on any of the three rescinded policy memos should consider if there is time remaining in the validity period requested on their previously filed H-1B petition and labor condition application (LCA) before filing a Form I-290B.
It is important to note that while it is possible to file an I-290B for some denied cases, in many instances, the foreign national's employer will have already resolved the issue by filing a new petition after the initial denial was received.
Looking Ahead
Envoy and Global Immigration Associates (GIA) are working to identify any cases that would benefit from filing a motion under this new policy, and clients will be contacted for any cases where it is determined that filing an I-290B would be acceptable.
Originally Published by Envoy, March 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
