About a month ago, we have discussed about a new USCIS policy memo on the requirements for H-1B beneficiaries seeking to practice in a health care occupation. This memo, dated May 20, 2009, clarifies the standards and licensing requirements for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation. As a follow-up to this memo, the USCIS issued further guidance on July 17, 2009, regarding this particular topic. Specifically, the USCIS announced that certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009, may request that the case be reopened by the USCIS.
What Cases can be Reopened by Government Motion?
The USCIS guidance states that if the H-1B petition (Form I-129) was denied solely on the basis that the beneficiary did not have a master’s or higher degree in the field, the petition may be reopened on service motion. What it means is that the USCIS will reopen the case on its own motion. Further, the reopened H-1B case will be adjudicated in accordance with the May 20, 2009 memorandum regarding the requirements for H-1B beneficiaries seeking to practice in a health care occupation. For more information about the May 20, 2009 memo, please review our blog discussion at http://szetolaw.com/blog/2009/06/. It is important to note that the USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative. In other words, if the employer had failed to respond to the government’s previous request for further evidence, the case will be not reopened on government motion.
How Can a Request be Made to Reopen denied H-1B Petitions?
Normally, the petitioner or applicant must affirmatively file an appeal or motion to reopen a case after a petition was denied. A fee must also be submitted with the appeal or motion. In light of May 20, 2009 guidance memo, USCIS is waiving the affirmative appeal and motion as well as the appeal or motion fees. If an employer and beneficiary believe that their case was denied solely because the beneficiary did not possess a master’s or higher degree in the health field, they may send an email to the Service Center that issued the denial of Form I-129 to request review of the denial. Such an affirmative request for review from the petitioner or its lawyer is required to expedite this process. Such emails should contain this subject line: “PT/OT Service Motion Request”, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be sent to: csc-ncsc-followup@dhs.gov. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be sent to: vsc.ncscfollowup@dhs.gov. Additionally, the email should also explain how the beneficiary meets the standards set forth in the May 20 memo. The USCIS must be satisfied that the beneficiary is currently eligible to practice in their respective health care occupation in the state of intended employment. If not yet submitted, the parties should submit this evidence as well. It is unclear if additional documents can be attached to the email.
Other Types of Denials
The July 17 guidance addresses how the USCIS will reopen one specific type of denial. It does not mean that other denials cannot be reopened or appealed. Requests to appeal and reopen the other types of cases must be made according to the normal procedure of the USCIS by completing the proper forms or motion papers, and must be accompanied by the appropriate appeal/motion fees. Further, they must be submitted before the deadline for filing such appeals and motions.
Conclusion
Such an accommodation by the USCIS is definitely good news to the parties whose H-1B petitions were denied. However, it is important to note the motion to reopen does not guarantee an approval. The USCIS can request for additional information if it is deemed necessary. The USCIS may affirm that original denial should there be additional reasons to deny the petition. It is very important for the parties to be well-prepared before making the request to reopen these cases.
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