March 17, 2021
LawQuest US Immigration Alert | Petitioners Can Now Challenge Certain USCIS’ Decisions Based on Rescinded Memos
Petitioners Can Now Challenge Certain USCIS’ Decisions Based on Rescinded Memos
The U.S. Citizenship and Immigration Services (USCIS) announced this week that it may reopen and/or reconsider adverse decisions regarding H-1B petitions that were based on three rescinded policy memos. These three rescinded policy memos are: (i) Determining Employer-Employee Relationship for Adjudication of H-1B Petitions Including Third-Party Site Placements; (ii) Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites; and (iii) Guidance memo on H-1B computer related positions.
These three policy memoranda have been rescinded by the USCIS and any denial decision based on any of these policy memos can now be challenged by way of filing with the USCIS, a Motion to Reopen and/or Reconsider (through Form I-290B, Notice of Appeal or Motion). For example, a denial of an H-1B petition that is based on failure to provide evidence of actual work assignment, contracts with end-clients, and/or statements of work, can now be challenged based on the revocation of the Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites policy memo.
Motions to reopen and/or reconsider are typically required to be filed within 30 days of the USCIS’ decision. Also, the USCIS has extended through March 31, 2021, Covid-19 related accommodations that affect the deadlines for filing motions and appeals. Petitioners should review the denial notice date to determine whether they have adequate time left to file the motion as also should consider whether there is time remaining in the validity period requested on the H-1B petition and the relevant labor condition application in question.
The USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and as permitted by regulation.