USCIS to Reconsider Denied Petitions after Rescinding Three Policy Memos
By: Rachel Horner
Additional Writing By: Kelsi Swenson
On March 12, 2021, USCIS announced some welcome news for recipients of denied H-1B visa petitions: if any of the three recently rescinded policy memos served as the basis for USCIS’s denial, the petition is eligible for reconsideration. This latest announcement suggests that USCIS is clearing its system of outdated, unforgiving policies, and to make way for new, more progressive policies.
Recap of the Policies Rescinded by USCIS
The first two policy memos both targeted petitions that involved third-party worksites, which are especially popular in the IT sector. These policies came from a general wariness around the notion that IT companies could contract their employees to a third-party company, raising questions about how much control a petitioner had over their employees in specialty occupation positions.
The first of these, issued on January 8th, 2010 and rescinded on June 17th, 2020, “HQ 70/6.2.8 (AD 10-24), ‘Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),’” focused on the validity of the employer-employee relationship. This ordinance required petitioners to submit itineraries and specific locations of any and all tasks or assignments performed at third parties in order to verify the petitioner’s responsibility over the employee, ensuring the employee was, in fact, performing their specialty occupation and being monitored by the petitioner.
The second, issued on February 22nd, 2018 and also rescinded on June 17th, 2020, “PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,’” required petitioners to provide the assignments for the duration of the specialty occupation employee’s work period at a third-party worksite. Similarly, the petitioners needed to prove to USCIS that the beneficiary would be working in accordance with their specialty occupation, regardless of their worksite. This unfavorable treatment of third-party worksites limited consulting work, a widely utilized business model in the IT sector.
The third policy memo, issued on March 31, 2017 and rescinded on February 3, 2021, “PM-602-0142, ‘Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,’” replaced the former, generalized definition of “computer programmer” with a much narrower one, leading to USCIS adjudicators more regularly rejecting specialty occupation petitions within the category. USCIS announced the recension of this memo in conjunction with extending the “H-1B final selection rule” to the end of the year, possibly foreshadowing a more lenient system.
What Does This Mean for Future Policies?
Since Biden’s presidency began in January, USCIS is acting in a more amenable fashion, and by announcing their decision to reconsider these petitions, they seemingly confirm this trend might continue. The Biden Administration’s stances on immigration, which support business immigration as the key to economic growth in struggling areas of the country, are in stark contrast with his predecessor’s. With the change in administration, it’s hopeful that USCIS will follow suit and work towards undoing its prior, strict rulings.
The removal of these three policy memos, which increases the possibility for petitions old and new to be approved, comes at an opportune time – CAP Season. While previously denied petitions eligible for reassessment need to be appealed using an 1-290B form, they will not need to enter the lottery process again if they were previously subject to the annual cap.
The coincidental timing of the announcement appears as USCIS’ extending an olive branch to attorneys and immigrants alike—a promising sign for the pandemic’s second CAP season.