Biden administration to reconsider objections to H1B visas during Trump regime

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Updated: Mar 13, 2021 12:20 PM

The Biden administration has said it is willing to reconsider the objections or adverse decisions to foreign workers on visas like H-1B, the most sought after among Indian IT professionals, due to the three policy memos by the previous Trump regime which now have been rescinded.

H1B visa, US visaThe H-2B programme allows US employers or agents to bring foreign nationals to the United States to fill temporary nonagricultural jobs. (Representational image: Reuters)

The Biden administration has said it is willing to reconsider the objections or adverse decisions to foreign workers on visas like H-1B, the most sought after among Indian IT professionals, due to the three policy memos by the previous Trump regime which now have been rescinded.

The move is expected to come to the rescue of a large number of Indian IT professionals who were having a tough time during the previous Trump administration due to various policies and memorandums on non-immigrant work visas, in particular the H-1B.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

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may reopen and/or reconsider adverse decisions” on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos.

The USCIS said it will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labour condition application, whichever is earlier, and the decision was based on one or more policies in the three rescinded H-1B memoranda.

On June 17, 2020, the USCIS issued Policy Memorandum 602-0114, which officially rescinded two prior policy memoranda. First titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” that was issued on January 8, 2010; and second “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued on February 22, 2018.

On February 3, 2021, USCIS issued Policy Memorandum 602-0142.1, which officially rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued on March 31, 2017. Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 state that they apply to “any pending or new (H-1B Petitions), including motions on and appeals of revocations and denials of H-1B classification.”

The USCIS said a petitioner may request that it 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, the USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.

“Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labour condition application,” the USCIS said.

The USCIS will generally process motions based on filing order, and consistent with current policy guidance, the federal agency said.

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