USCIS May Re-Consider Adverse H-1B Decisions and Provide Pathway to Approval
Public Charge Rule Rescinded
The USCIS on Friday, March 12, 2021 announced that it may “reopen and/or reconsider” denials of H-1B visa petitions based on the U.S. Federal Courts invalidating three USCIS memorandums that were used in the adjudication of these applications. The three Memorandums that were rescinded governed USCIS rules on:
- Employer Employee Relationships (HQ 70/6.2.8 (AD 10-24))
- Contracts and Itinerary Requirements for H-1B Petitions involving third-party worksites (PM-602-0157)
- Rules restricting certain positions (especially Computer Programmers) as specialty occupation positions thereby restricting eligibility for H-1B visas (PM-602-0142)
Previously, the USCIS had stated that it would no longer apply these memorandums on any “pending H-1B petitions” or those currently in any form of review. The USCIS has now stated that it will allow the filing of motions or appeals for previously denied petitions. While not providing any concrete guidelines on which petitions it will accept for review, the USCIS has stated that it will “use its discretion.” Additionally, practicality will dictate that it would only effect petitions that have “time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application.” This will mean that a small number of petitions may in fact be eligible for review and reassessment.
At USILAW, based on our experience, we have noticed that sometimes, there is a gap or lag-time between the announcement and the application of the new rule to petitions being adjudicated by USCIS Case Managers. We therefore recommend to all our clients – to continue attaching MSA/SOWs (if available) to all their petitions. We advise against asking for End Client Letters from End Clients – but if they are available we will also include them in our petitions. Our concern is that although the rule might have changed, the enforcement or applicability of them to future petitions may take some time to implement by the Case Managers. By including End Client documents we anticipate that this will reduce the amount of RFEs generated by USCIS, which has been our firm’s experience over the past decade.
Additionally, the USCIS, following the decision of the U.S. District Court for the Northern District of Illinois, has also rescinded the requirement for the filing of the Form I-944 beginning on March 9, 2021 and will stop applying the Public Charge rule on all pending and future petitions for immigration benefit.
We will monitor this issue and update our clients as more information becomes available. Please feel free to contact USILAW with any questions or issues that you may have. You may reach us via telephone at +1 (202) 618 4540 or via email at info@usilaw.com.
