Department of Homeland Security Update

– This update reflects some of the best news from DHS as U.S. Citizenship and Immigration Services (USCIS) announced it may reopen and/or reconsider its denial decisions of Form I-129, Petition for a Nonimmigrant Worker, proceedings that were based on three recently rescinded policy memos. USCIS is expected to use its discretion to accept a motion to reopen filed more than 30 days after the denial decision, if filed before the end of the validity period requested on the petition or labor condition application (LCA), whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.

The following policy memoranda have been rescinded:

1. HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and

2. PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

3. PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

Petitioners may request that USCIS reopen and/or reconsider denial decisions based on the three rescinded policy memos above by properly filing Form I-290B, Notice of Appeal or Motion, with fees. Per the above, USCIS has the discretionary authority to accept motions filed outside of the permissible appeal period.

– USCIS has extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals. If in doubt, consult your immigration legal counsel to determine your eligibility for an immigration benefit or a belated filing of a motion or appeal.

– Effective March 9, 2021, Adjustment of Status applicants should no longer submit Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form. Use of Form I-944 has been discontinued and USCIS is no longer applying the Public Charge Final Rule to the pending applications and petitions that would, otherwise, have been subject to the rule. USCIS continues to apply the public charge inadmissibility statute, including consideration of the statutory minimum factors in the totality of the circumstances, in accordance with the 1999 field guidance that was in place before the Public Charge Final Rule was implemented on Feb. 24, 2020, to the adjudication of any application for adjustment of status. In addition, USCIS will no longer apply the “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status.