March 12, 2021

Second Chance for Denied H-1B Petitions During Trump Administration?

During the Trump administration, many H-1B applications, including renewals of H-1B employment, were denied due to three policies which federal courts have found to violate the law.  The policies were embodied in several USCIS memoranda:

  • “Determining Employer-Employee Relationship for adjudication of H-1B petitions, including Third-Party Site Placements (Reference AFM Chapter 31.3.(g)(16)) issued January 8, 2010
  • “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” issued February 22, 2018
  • “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions’” issued March 31, 2017.

On March 12, 2021, the USCIS announced it will entertain motions to reopen and/or reconsider  H-1B petitions that were denied based upon these three policy memoranda.  Affected employers  can file a motion to reopen their case for possible approval IF there is still time remaining in the required period of employment (validity period) under the labor condition application (LCA).  To file a motion to reopen, the H-1B employer must file an I-290B Notice of Appeal or Motion  form and pay a $675 filing fee.

For some, this is a second chance for approval of their case even if the H-1B denial has occurred more than 30 days ago. If your petition was denied based on one of the three policies, contact your immigration attorney.

This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances.  For a comprehensive evaluation of your immigration situation and options, you are invited to call us at 214-494-8033 or complete our contact form below.