As many of our clients are already aware, USCIS has completed the H-1B Lottery for FY 2022. Due to a high number of registrations, the number of candidates selected in the lottery for each petitioning company may be lower than usual. While many of our clients may be wondering what to do next, ILBSG encourages those not selected to explore other viable options – like recapturing a previously denied H-1B petition.

As ILBSG has reported earlier, USCIS has announced that it will consider Motions to Reopen / Reconsider filed for cases which were denied based on three recently rescinded policy memos. While an MTR must normally be filed within 30 days of the denial notice, USCIS has stated that it will consider MTRS filed beyond the deadline in its discretion. Since many of the affected cases were denied before the policy memos were struck down, this is only fair. This is important news for our clients who may have suffered from unfair H-1B denials in the last few years– particularly those who didn’t get selected in the lottery this year.

There are three now-rescinded policy memorandums which we can use to challenge past denials. These memos include:

  1. The 2010 Policy Memo titled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.”
  2. The 2018 Policy Memo titled, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”
  3. The 2017 Policy Memo titled, ‘Guidance memo on H1B Computer Related Positions.”

As such, if you received an H-1B denial based on any of these memos (for example, insufficient end client documentation, a missing contract or SOW, an itinerary that did not cover the entire requested H-1B period, or on the basis that the position was for a computer programmer), you are now eligible for relief. Since these memos were eventually struck down, denials that relied on these memos are now considered improper and we have grounds to challenge them.

Particularly if you were not selected in this year’s H-1B lottery, but have a denied case from a previous year, we strongly encourage you to come forward to claim the relief you are owed. This may be a way to obtain an H-1B visa and recapture your previous cap filing.

ILBSG is confident that this is a great option for our clients, based on the success we have already seen for these kinds of cases. To date, ILBSG has filed several untimely MTRs based on the rescinded 2010 and 2018 policy memos. We have received approvals for these cases, despite filing them up to two years after the denial notice date. If you are similarly affected, we urge you to come forward and take action.

While not being selected in the FY 2022 H-1B cap may feel like a setback, there are still options available – like this one –  and ILBSG stands ready to assist clients in reaching a favorable outcome.

If you believe your denied case may be eligible for relief at this time and you would like to pursue an MTR, please contact one of our ILBSG attorneys today.

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