On June 17, 2020, USCIS issued a new Policy Memorandum and rescinded two earlier policy Memoranda on Employer-Employee Relationship for Adjudication of H-1B petitions including Third-Party Site Placements issued January 8, 2010 (Neufeld Memo) and the Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Site Worksites, issued February 22, 2018. The rescission was driven by the settlement agreement reached between IT Serve Alliance, Inc. and United States Citizenship and Immigration Services in case No. 1:18-cv-02350-RMC.
NEW POLICY GUIDANCE FOR H-1B ADJUDICATIONS
USCIS has now issued new guidance on: Employer-Employee Relationship; Contracts; Non-Speculative Specialty Occupation Work; Itinerary; and Limited Duration Approvals. These five areas have been hotly contested and have been the subject of significant litigation with USCIS given that USCIS was severely misapplying the law and the regulations.
WHAT ARE THE CHANGES?
A. EMPLOYER-EMPLOYEE RELATIONSHIP
- Moving forward the test for employer-employee relationship will be whether Petitioner has met at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary – 8 CFR 241.2(h)(4)(ii)
- Petitioners are required to submit LCA and copy of Employment Offer and Agreement with the Beneficiary
- Petitioner has the burden to show bone fide offer exists and that employment exists at the time of filing and Beneficiary will be employed in the Specialty Occupation
- Standard of Proof remains “Preponderance of the Evidence”
- Should the supporting documentation and attestation not meet “Preponderance of the Evidence,” standard, the Officer should articulate that basis in denying the Petition.
- Contracts or Legal Agreements between H-1B Petitioner and third parties is NOT a legal requirement
- However, Petitioner must demonstrate eligibility for benefit sought
- USCIS can consider any evidence provided by Petitioner
- GLF recommends that Petitioners continue to provide MSA, WO, SOW, Vendor and Client Letters for the entire contractual path in support of their H-1B petitions.
C. NON-SPECULATIVE SPECIALTY OCCUPATION WORK
- Specific day-to-day assignments is not required to establish that the position is in a specialty occupation – but good to include
- GLF recommends that Petitioners continue to submit evidence of day-to-day work to sufficiently establish that the beneficiary will be employed in Specialty Occupation work
- Policy guidance has not changed concerning benching of employees for an extended period of time.
- Non-Productive status due to Lack of work may be a material change in the terms and conditions of employment and USCIS may issue Notice of Intent to Deny (NOID) or Notice of Intent to Revoke (NOIR)
- Non-Productive status because of FMLA or ADA is not violation of H-1B status
- If non-productive status is reasonable for transition between assignments that should not be a violation of H-1B status
- If Beneficiary has never been in working status USCIS officers are asked to consult supervisor
- Filing of an Amendment in itself should not lead Officers to question the underlying approval, if there is no pattern or practice to file Amended Petitions and Officers may simply deny extensions or COS (issue I-797B).
- Itinerary requirements contained at 8 CFR 241.2(h)(2)(i)(F) shall apply.
E. LIMITING VALIDITY PERIODS
- Policy Memorandum clarifies that the Limited Period Approvals MAY continue to be issued by USCIS but will be supported by a brief explanation as to why the validity period has been limited.
- GLF hopes that instances of shorter duration approvals tied to the work duration specified in the Work Order or Purchase Order will be LESS common moving forward.
To summarize, USCIS has issued a new Policy Memorandum and rescinded two earlier policy Memoranda: Neufeld Memo of 2010 and the Contracts and Itineraries Memo of 2018.
USCIS has instead now issued new guidance on: Employer-Employee Relationship; Contracts; Non-Speculative Specialty Occupation Work; Itinerary; and Limited Duration Approvals. These five areas have been hotly contested and have been the subject the significant litigation with USCIS given that USCIS was severely misapplying the law and the regulations.
At GLF, we are cautiously optimistic that we will begin to see fairer adjudications; fewer boiler plate RFEs on employer-employee relationship and Contracts; and approvals for the complete requested duration!
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