Hope – As Some Denied H-1B petitions May Get a Second Chance

As we have previously reported, Biden has immediately taken steps after swearing in to dismantle Trump’s restrictive H-1B measures. He has already revoked/rescinded prior policy memos that have led to record number of RFEs and denials.

On March 12, 2021, USCIS announced that it may reopen and/or reconsider adverse decisions on Form I-129 made based on three rescinded policy memos. They key word here is “may” which means that the petitioner must first file a motion if the denial was based on one or more policies in the rescinded H-1B memoranda below.

  • 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, “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.

A motion may be filed via form I-290B. Keep in mind that USCIS has discretionary authority to accept. It may also reject if it finds that a motion though meeting the requirements outlined above may now be moot. This happens when the requested period in the denied petition has already expired or accompanied LCA is no longer valid. In short, recently denied H-1Bs may have a better chance at benefiting from this announcement than those denied many years ago.