USCIS Invites Employers to Challenge H1B Denials Based on Rescinded Memos

Today, the U.S. Citizenship and Immigration Services (USCIS) announced that it may reopen and/or reconsider a denial issued on an H1B petition if the decision was based on one or more policies in three rescinded policy memos. The three rescinded memos are:

• “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, 08.Jan.2010
• “Contracts and Itineraries Requirements for H1B Petitions Involving Third-Party Worksites,” issued 22.Feb.2018
• “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued 31.Mar.2017

More details on the three rescinded memos are available in the MurthyDotCom NewsBriefs, Analysis of USCIS Memo on H1B Workers Placed Offsite (01.Mar.2018) and “Overview of USCIS Memo on H1B Petitions for Computer Programmers (12.Apr.2017).

To challenge a denial that was based on one of the rescinded memos, the petitioning employer may file a notice of appeal or motion (form I-290B). However, the I-290B must filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier.

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