If an H-1B petition was denied because of unlawful policies, it may be possible to resubmit it for consideration as policies are updated.
In 2020 and 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded three written policies following the federal courts finding that they were unlawful. The following are some details about the courts’ findings and USCIS’s decision to rescind the unlawful memoranda.
Challenging the USCIS’s Decisions
The USCIS may have denied certain H-1B visas based on unlawful policies that have since been rescinded. In the H-1B visa category, noncitizens are required to have highly specialized knowledge, which they could have obtained either through a bachelor’s degree or a higher degree within a “specific specialty” or equivalent.
Within the last year, USCIS has rescinded three unlawful memoranda, rescinding the first two in June 2020 and another in February 2021. Then, on March 12, 2021, USCIS put a procedure into place that would enable some people whose H-1B visas were previously denied to resubmit them for review and approval.
In addition to the federal courts’ determination, an appellate court also rejected USCIS’s refusal to consider the position of “computer programmer” a specialty occupation in December 2020. The case involved a computer programmer whose H-1B petition was denied, which the Ninth Circuit U.S. Court of Appeals overturned.
The appellate court discovered that while USCIS claimed that computer programmers are capable of entering the occupation with an associate or a bachelor’s degree, the Department of Labor’s Occupational Outlook Handbook (OOH) stated that “most computer programmers have a bachelor’s degree in computer science or a related field.” Ultimately, the OOH argued that a majority of computer programmers require a bachelor’s degree to gain employment.
The case pertaining to the computer programmer occupation resulted in the February rescinding of the USCIS’s 2017 computer programmers policy memo.
Requirements for Getting an H-1B Visa Denial Reversed
Although USCIS announced in March that it would enable companies to reverse H-1B petition denials based on unlawful policies, there are certain steps that these companies will need to take. They will first need to file a motion that costs $675 in filing fees. The denied petition is also required to have sufficient time to allow the noncitizen employee to work for the company if approved. If companies meet these requirements, they may be able to have their previously denied business visas reviewed and approved.
