The US may reopen denied H-1B petitions, new hope for petitioners

USCIS may reopen H-1B petitions

The USCIS has announced the possibility of reopening and/or reconsidering decisions against people involved with the petition for a non-immigrant worker or a Form I-129 made on the basis of 3 rescinded policy memos.

The USCIS generally makes such a decision to accept a motion intending to get files after over 30 days of making a decision on them. For this, it has to be filed before the validity period requested ends. Such a request is made either on the labor condition application or the petition whichever is earlier. The decision will have been made based on the policies in the rescinded H-1B memoranda.

A petitioner may make a request to the USCIS to reopen and/or reconsider decisions against them based on the 2 rescinded policy memos. This can be done by the proper filing of Form I-290B, Notice of Appeal, or Motion. Such a filing must be with the appropriate fee paid.

Also, USCIS can exercise its authority to act on its discretion to accept and consider untimely motions under exceptional circumstances. These are explained in the instructions coming with the form and are permitted by regulation.

Those petitioners who got a decision against them on an H-1B petition on the currently rescinded policy memo should think if there’s time left in the period of validity that was requested for in the previous H-1B petition as well as the labor condition application deemed relevant.

Moreover, USCIS has extended COVID-19 related accommodations. The accommodations do affect the deadlines to file appeals and motions. The extension is now done through March 31, 2021.

The general way of processing motions as practiced by the USCIS is to do in the order in which they are filed. They have also to be consistent with the policy guidance in effect now.

As a reminder, USCIS wants the petitioners to be aware that the petitions will be subject to all relevant and remaining eligibility requirements prescribed at the time of reopening or reconsideration.

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USCIS – United States Citizenship and Immigration Services

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