USCIS To Allow Employers Another Chance at Certain H-1B Denials

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On Friday, March 12, 2021, U.S. Citizenship & Immigration Services (USCIS) announced that it may reopen and/or reconsider the denial of previously filed H-1B visa petitions, in cases where the denial was based on one or more of three since-rescinded policy memos. These rescinded policy memos include the following:

  • 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;

This memo provided guidance on the requirement that an H-1B petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. This memo was one piece in USCIS’s battles against third-party placements for H-1B beneficiaries, as under this guidance, USCIS imposed strict requirements on an employer’s requirements to document that it would maintain the right to control the H-1B beneficiary’s job performance at all times. It required that for any H-1B petitions where the beneficiary would be performing services in more than one location, a detailed itinerary was required to be submitted to document the employee’s location of employment at all times during the petition validity period. This memo was rescinded on June 17, 2020 via PM-602-0114.

  • PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018;

This policy memo again targeted H-1B petitions where the beneficiary would be employed at one or more third-party worksites, and had particular effect on the IT industry where subcontractor/vendor/end-client arrangements are common. This memo clarified that when a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. This evidence was generally required to include contracts or work orders with the vendor or end-client, a letter from an authorized official of the end-client company providing a detailed description of the beneficiary’s duties and supervision, and a detailed itinerary of the beneficiary’s dates/places of employment. This memo was also rescinded on June 17, 2020 via PM-602-0114.

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

This policy memo tightened USCIS’s interpretation of “specialty occupation” with regard to computer programmers and other related computer occupations, and rescinded an earlier USCIS memo/interpretation which concluded that USCIS would generally consider the position of computer programmer to qualify as a specialty occupation. This memo was rescinded on February 3, 2021 via PM 602-0142.1

As we addressed earlier in the Harris Beach Immigration Blog, the rescission of these policies by itself was welcome news to H-1B petitioners, as it meant these three memos could no longer serve as a basis for H-1B denials going forward. However, in a somewhat unexpected move, USCIS has now announced that affected H-1B petitioners may request that USCIS retroactively reopen and/or reconsider adverse decisions (denials) based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. Although a Motion to Reopen/Reconsider an adverse USCIS decision generally must be filed within 30 days of the adverse decision, USCIS’s recent announcement emphasized that the agency has the discretionary authority to accept and consider untimely motions (i.e., those filed more than 30 days after the underlying denial) under certain circumstances, and that USCIS will generally use its discretion to accept an “untimely” motion to reopen filed more than 30 days after the decision, if the motion to reopen is 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 above.

For many, this more liberal policy on reopening and reconsidering prior denials may be of limited benefit, as the position may no longer exist or the beneficiary may have since accepted employment elsewhere. However, this would be of particular benefit for cap-subject H-1B petitions, where an H-1B petition was selected in the annual H-1B lottery in a previous year but the petition was ultimately denied. By reopening such a denial and obtaining an approval of the H-1B petition, this would make the beneficiary of that petition exempt from the H-1B numerical limitations, as having been counted against the “cap,” and would exempt that employee from the need to go through and be selected in the H-1B lottery again.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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