Reopening of Denied H-1B Petitions Relating to Client Site Employment, Computer Positions

Have your H-1B petitions been denied by USCIS in the past few years based on reasons relating to third-party worksite employment?  Or based on findings that a computer position was not a qualified H-1B specialty occupation?  If so, you may be able to request reopening and reconsidering of your petition by USCIS. 

USCIS announced on 3/12/2021 that it may allow petitioners to file motions to reopen and/or reconsider denied I-129 H-1B petitions if the denials are based on three rescinded USCIS memos:  3/31/2017 memo (regarding computer programmer positions), 1/8/2010 memo (regarding employer-employee relationship), and 2/22/2018 memo (regarding requirements of contracts and itineraries for third-party assignments). 

The regulation generally requires that motions to reopen and motions to reconsider be filed within 30 days of the adverse agency decision.  However, USCIS announced that it may accept motions relating to the rescinded memos as long as they are filed before the end of the H-1B validity period requested.  So, for example, if a denied petition requested for H-1B employment for a worker from 10/1/2018 to 9/30/2021, the parties would have until 09/30/2021 to file a motion.

If your H-1B petition was denied for the following reasons, you may be able to request reopening of your petition for reconsideration by USCIS:

• A finding that your computer-related position (e.g., programmer) was not specialty occupation
• A finding that there was no valid employer-employer relationship between the petitioner and the H-1B worker
• A finding that there was insufficient contractual relationship between the petitioner and the end client (e.g., failure to produce end-client letter, contracts, itineraries, statements of work, etc.)
• A finding that there was no or insufficient non-speculative assignments to support the H-1B petition
• A finding that there was insufficient control by the petitioner over the H-1B worker during the employment period

These are just some examples of reasons for reopening. There may be other valid reasons.  In some situations, it may not be worthwhile to ask for reopening.  For some petitions including first time H-1B CAP petitions, reopening may make sense as it is the only way to save the allocated H-1B visa number.   When in doubt, you should consult with an experienced immigration attorney.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)