New Hope for an Old H-1b Denial ?

Last week, the USCIS announced that it would entertain Motions to Re-open/reconsider (MTR’s) on denials of H-1b petitions that were based on one of three memos that have since been rescinded either by Federal Court order or by USCIS action. The relevant memos are: computer programmer memo from 3-31-2017; the employer-employee relationship memo dated 1-8-2010 (commonly referred to as the Neufeld memo); and, the contracts memo dated 2-22-2018. Although there are many denials based upon one of theses three memos, it is likely that this action will provide limited relief as a practical matter. Most denials resulted in new filings or the beneficiary moved onto another opportunity or left the U.S. and the opportunity as presented in the petition is unlikely to remain. The most common scenario that may warrant re-visiting is for US grads who may still be on some form of student employment i.e. STEM OPT or CPT and have a denial from a prior cap lottery filing. In spite of the limited applicability, we applaud the efforts of the Biden Administration to offer the opportunity to correct an error based upon the faulty and/or illegal policies enacted by both the Trump and Obama Administrations. If you have any cases that you think may warrant review, please reach out to your HNM attorney for assessment.

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