Key Points
- USCIS may reconsider adverse decisions made on Form I-129, Petition for a Nonimmigrant Worker
- Petitioners may request to have their applications reopened or reconsidered if the decision was based on one of three rescinded memos
- Petitioners can request a reconsideration by properly filing Form I-290B, Notice of Appeal or Motion
- A fee is required for filing
- USCIS may also consider untimely motions in certain circumstances as authorized by regulations
- Provisions are still in place due to COVID-19 that impact deadlines for filing appeals and motions
- USCIS will typically process motions based on their filing order and in accordance with existing policy guidelines
Overview
US Citizenship and Immigration Services (USCIS) has announced that it may reconsider adverse decisions made on Form I-129, Petition for a Nonimmigrant Worker submissions if the decision was made based on three rescinded policy memos.
Petitioners may request to have USCIS reopen and/or reconsider adverse decisions on their applications that were made based on any of the following three rescinded memos:
- HQ 70/6.2.8
- PM 602-0157
- PM 602-0142
On June 17, 2020, USCIS issued Policy Memorandum (PM) 602-0114, which rescinded two previous memos: HQ 70/6.2.8, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” which was issued on January 8, 2010; and PM 602-0157, titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” which was issued on February 22, 2018.
On February 3, 2021, USCIS issued PM 602-0142.1, which rescinded PM 602-0142, titled “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’” that was issued on March 31, 2017. PM 602-0114 and PM 602-0142.1 both 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.”
What Should Employers and Applicants Know?
Petitioners can request to have their application reconsidered by properly filing Form I-290B, Notice of Appeal or Motion, along with the corresponding fee.
USCIS may also consider untimely motions in certain circumstances as authorized by regulations.
Petitioners who received an adverse decision based on any of the three rescinded policy memos should consider if there is time remaining in the initial validity period requested on their previously filed H-1B petition and labor condition application (LCA) before filing a Form I-290B, Notice of Appeal or Motion.
Employers and applicants should note that provisions are still in place due to COVID-19 that impact deadlines for filing appeals and motions.
Looking Ahead
USCIS will typically process motions based on their filing order and in accordance with existing policy guidelines. Additionally, the agency reminds petitioners that petitions will still be subject to all existing and relevant eligibility requirements if they are reopened and/or reconsidered.
