Biden admin to rethink the H1B visa objections under Trump's regime
Biden admin to rethink the H1B visa objections under Trump's regime

Due to the three policy memos issued by the previous Trump administration, which have now been rescinded, the Biden administration said on Friday it is willing to rethink its objections or adverse decisions to foreign workers on H-1B visas. The change is expected to save a large number of Indian IT professionals who faced difficulties during the previous Trump administration as a result of various policies and memorandums on non-immigrant work visas, especially the H-1B visa.

US Citizenship and Immigration Services (USCIS) announced on Friday that “it could reopen and/or rethink adverse decisions” made on Form I-129, Petition for a Nonimmigrant Worker, based on three revoked policy memos.

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USCIS said it would consider a motion to reopen filed more than 30 days after the decision if it is filed before the end of the validity period sought on the petition or labor condition application, whichever comes first, and the decision was made based on one or more policies in the three rescinded H-1B memoranda.

USCIS released Policy Memorandum 602-0114 on June 17, 2020, which formally revoked two previous policy memos. The first, titled “Determining Employer-Employee Relationship for H-1B Petitions, Including Third-Party Site Placements,” was released on January 8, 2010, and the second, titled “Contracts and Itineraries Criteria for H-1B Petitions Involving Third-Party Worksites,” was issued on February 22, 2018.

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USCIS released Policy Memorandum 602-0142.1 on February 3, 2021, which formally rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer-related roles,'” which was issued on March 31, 2017. Both Policy Memorandums 602-0114 and 602-0142.1 note that they refer to “any existing or new [H-1B Petitions], including motions on and appeals of H-1B revocations and denials.”

By properly filing Form I-290B, Notice of Appeal or Motion, followed by the required fee, a petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos.

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In addition, USCIS has the discretionary authority to accept and consider late motions in such cases, as stated in the form instructions and as allowed by law.

“Petitioners who obtained an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should determine whether there is time left in the validity period requested on the previously filed H-1B petition and the related labor situation application,” according to USCIS.

According to USCIS, motions will be processed in the order in which they are filed and in accordance with existing policy guidelines.

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