Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
USCIS may reopen H-1Bs denied under 3 rescinded policy memos

On 3/12/2021, the U.S. Citizenship and Immigration Services announced it may reopen and/or reconsider H-1B denials based on three rescinded policy memos. Normally, such motions to reopen/reconsider may only be filed within 30 days of the denial.
The rescinded policy memoranda, listed below, resulted in many denied H-1B petitions over the past few years:
  1. Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements. (2010) This memorandum resulted in many H-1B denials under the stated reason that USCIS could not determine if there was an employer-employee relationship and therefore whether the position was a specialty occupation.
  2. Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites. (2018) This memorandum required employers to provide all contracts and itineraries if an employee was to perform services at a third-party client site.
  3. Guidance memo on H1B computer related positions. (2017) This memorandum advised that a Programmer was not to be considered a specialty occupation that was eligible for H-1B status and resulted in the denial of countless H-1B petitions on behalf of Computer Programmers as well as Software Developers and similar occupations.
Petitioners who received denials of H-1B petitions based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested in those previously filed H-1B petitions to make a motion to reopen/reconsider worthwhile. Keep in mind that it will likely take the USCIS several months to process such motions.
This client alert is being provided only to company representatives. Please share with your foreign national staff as you see fit or direct them to our web site where this client alert will be posted.

If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.

Leila Freijy
Law Office of Leila Freijy PLLC
Law Office of Leila Freijy PLLC|
Immigration & Compliance Law
Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083
248.287.4115 (fax)