H-1B visas: US to reconsider objections raised during Trump regime

Ramya Patelkhana
·3-min read


H-1B visas: US to reconsider objections raised during Trump regime
H-1B visas: US to reconsider objections raised during Trump regime

13 Mar 2021: H-1B visas: US to reconsider objections raised during Trump regime

The Biden administration announced it is ready to reconsider objections or adverse decisions to foreign workers on visas, like H-1B, due to three policy memoranda by the Trump administration that have now been rescinded.

This should provide relief to numerous Indian IT professionals who had a tough time in the Trump regime owing to various policies and memos on non-immigrant work visas, especially H-1B.

Fact: USCIS may reopen and/or reconsider adverse decisions on Form I-129

The announcement was made by the United States Citizenship and Immigration Services (USCIS) on Friday. The USCIS said that it "may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos."

Statement: Here's what the USCIS stated in a release

"USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda...," the USCIS said in a release.

Policy memos: Three prior policy memoranda that have been rescinded now

USCIS issued a policy memorandum on June 17, 2020, rescinding two previous policy memos: "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" and "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites".

On February 3, 2021, it issued another memorandum to rescind a prior memo titled "Rescission of the December 22, 2000 'Guidance memo on H-1B computer related positions.'"

Fact: Both memos apply to any pending or new H-1B petitions

Both the policy memoranda issued by the USCIS (in June 2020 and February this year) to rescind the three previous policy memos 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."

Process: Petitioner may request to reopen and/or reconsider adverse decisions

According to USCIS, a petitioner may request the federal agency to reopen and/or reconsider adverse decisions on the basis of the three now-rescinded policy memoranda by filing Form I-290B, Notice of Appeal or Motion, along with appropriate fees.

"USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation," USCIS said.

Statement: USCIS will process motions based on filing order

"Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application," USCIS said.

The federal agency will process motions on the basis of the filing order, as per the existing policy guidance.