USCIS Rescinds Policy Memos that Increased Denials for H-1B Visas

On May 20, 2020, USCIS agreed to a settlement with ITServe Alliance that overturned policies restricting employers and H-1B visa holders. Within this settlement exists an agreement to withdraw two policy memoranda as well as a new policy memo to take their place. The two previous policy memoranda consisted of:

  • Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Issued in January 2010)
  • Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Issued February 2018)

The new guidance in the policy memorandum is effective immediately and USCIS officers should not apply the previous memoranda to any pending or new requests for H-1B classification.

What Does the New Policy Memo Mean for Employers?

Before this new policy memo existed, employers had a variety of problems with the policies implemented by the USCIS. This included employer-employee relationships, requests for evidence on proof of employment, contracts, validity periods, and more. Under the new policy, this is how employers can expect to see changes:

  • Employer-Employee Relationship: USCIS adjudicators should apply the existing regulatory definition in assessing whether an employer and a beneficiary have an employer-employee relationship. The officer should consider if the petitioner established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary.
  • Requests for Evidence on Proof of Employment: Petitioners have the burden of proof to establish that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation. If supporting documentation meets this standard, the officer should not request additional evidence and should approve the petition if all other eligibility requirements are met.
  • Contracts: An H-1b petitioner is not required to submit contracts or legal agreements between the petitioner and third parties. However, it is unclear how USCIS adjudicators will interpret their discretion to request contracts indicating future work. 
  • Validity Periods: USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the petitioner. However, this decision must come with an explanation as to why the period has been limited.

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