U.S. Citizenship and Immigration Services (USCIS) today issued guidance to
certain employers who received a denial of Form I-129,
Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary
to practice in a health care specialty occupation prior to May 20, 2009.
If the Form I-129 was denied solely on the basis that the H-1B beneficiary
did not possess a Master’s or higher degree in the field, the petition
may be reopened on service motion and will be adjudicated in accordance with
the May 20, 2009 memorandum on “Requirements for H-1B Beneficiaries Seeking
to Practice in a Health Care Occupation,” which provides clarification
on the standards for H-1B health care specialty occupations. USCIS will only
review denials of petitions for which it has received a written request for
review from the petitioning employer or its representative.
USCIS is requesting that employers whose H-1B petitions were denied on the
above basis send an email to the Service Center that issued the denial of Form
I-129 to request review of the denial.
An affirmative request for review from the petitioner or its representative
is required to expedite this process. In light of recently-issued guidance,
USCIS is providing a special accommodation to the public by initiating Service
Motions to Reopen (upon receiving an email request) in lieu of requiring petitioners
to file an appeal. Therefore, USCIS is not requiring petitioners to submit an
appeal fee or any other fee in this instance.
Requests should include “PT/OT Service Motion Request” in the subject
line of the email, and will be accepted through August 14, 2009. Requests for
review of H-1B health
care specialty occupation petitions that were adjudicated at the California
Service Center should be sent to:
Requests for review of H-1B health care specialty occupation petitions that
were adjudicated at the Vermont Service Center should be sent to: firstname.lastname@example.org.
Affected petitioners requesting USCIS review of their H-1B petition(s) are
not required to submit a copy of the May 20, 2009 memorandum, but should explain
how the H-1B beneficiary meets the standards set forth in that memorandum. Also,
as with the reopening on a Service Motion, USCIS must be satisfied prior to
approval that the beneficiary is currently eligible to practice in their respective
health care occupation in the state of intended employment. Petitioners are
advised to document this evidence. In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information.
If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary’s continuing eligibility,
the original denial of the case will be affirmed.