USCIS May Reconsider Denied H1B Visa Petitions Due to 3 Cancelled Memos. Sweet!

Did your H1B petitions get selected in the H1B Visa lottery in the past and later H1B Visa application was denied during processing?

USCIS announced today (March 12, 2021) that they may reconsider such denied petitions if the denials were due to three rescinded policy memos.

What are those three memo’s?

1. Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements. (Issued, Jan. 8, 2010).
2. Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites. (Issued Feb. 22, 2018).
3. Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions,” issued March 31, 2017

Did USCIS deny your H1B petition due to the reasons under the three memo?

Then you could have a conversation with your employer.

How to Request to Reopen and/or Reconsider?

A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.

This is great news. Right?

My Two Cents

If you happen to work for the same employer, I think it would be easy to request the them (or your employer’s attorney) to apply for Reconsideration.

What if you have moved-on to a different employer? That’s get tricky. Right?

Maybe if you left on good terms, you could ask nicely if they would apply for reconsideration.

The filing fee for Form I-290B is $675.

Plus, there could be an Attorney Fee as well.

Processing Time for Reopen/Reconsider

Let us know if you are going to apply for Reconsideration and the decision. I’m not sure there is a Premium Processing option. In general, appeals could take several months to hear back.

As per the latest Administrative Appeals Office (AAO) processing time data for October – December 2020, only 26.74% of appeals have been completed processing within 180 days.

AAO – Chances of Approval

Here’s the AAO Office appeals Data and Statistics for FY 2017, 2018 and 2019.

When adjudicating an appeal on the merits, the AAO generally:

• sustains (approves)
• dismisses (denies)
• remands (returns)

So, how long would your case take and what are the approval chances?

I can’t predict that. But, you have a shot at submitting an appeal. So, if your employer is willing to file an appeal, then go for it. Good Luck.