On March 12, 2021, US Citizenship & Immigration Services (USCIS) stated that the agency may “reopen and/or reconsider adverse decisions on Form I-129” based on three rescinded policy memos. USCIS notes the agency generally uses “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or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.”

On June 17, 2020, USCIS issued Policy Memorandum 602-0114 (PDF, 379.71 KB), which officially rescinded two prior policy memoranda:

“Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” issued January 8, 2010;
“Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued February 22, 2018.

Moreover, on February 3, 2021, USCIS issued Policy Memorandum 602-0142.1 which officially rescinded:

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

In order to challenge a denial of a petition that was based on one of the above rescinded memos, the petitioning employer may file Form I-290B, Notice of Appeal or Motion, with the appropriate fee. USCIS says they will generally process motions based on filing order, and consistent with current policy guidance, and also reminds petitioners that “even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.”