Have the H-1B Visa Policies Changed in Favor of Employers?

Have the H-1B Visa Policies Changed in Favor of Employers?

USCIS has reached a settlement with business group ITServe Alliance, Inc. v USCIS, Case No. 1:2018cv02350, which ends 10 years of restrictions imposed on employers by USCIS in a memo dated January 8, 2010 authored by Donald Neufeld. That memo defined what constituted ‘employer-employee’ relationships and imposed restrictions on third party placement of employees.

On March 20, 2020 a District Court opinion has rejected certain actions taken by USCIS (ITServe Inc. v Cissna), and on May 20, 2020 a judge in Georgia ruled against USCIS policies. In the former, Judge Collyer stated: “The current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.” In the latter, Judge Totenberg stated: “In conclusion, the Court finds that there is no basis in the INA [Immigration and Nationality Act] or the Agency’s regulations for requiring a petitioner to submit evidence of specific, qualifying work requirements and micro-location information for every single day of the visa period.”

Employers have been meeting the standard of what constitutes an employer-employee relationship. The Itinerary rule has also been found to be arbitrary and capricious. Employers will no longer need to provide proof of non-speculative work assignments for the duration of the visa period, specifying every contract or duty to be performed while in H1B status.

USCIS must within 90 days, rescind the 2018 Contract and Itinerary Memorandum, and has agreed not to approve H-1B petitions with a validity period shorter than that requested by the petitioner unless it submits a brief giving a valid explanation for the shorter validity period.

The USCIS-ITServe settlement will affect current and prior H-1B filings with respect to the standard of adjudication of the employer-employee relationships and the validity period of H-1B approvals for employment at third-party locations. It will also reopen and adjudicate decisions on H-1B adjudications that were the subject of the ITServe Alliance lawsuit against USCIS and will not apply the current regulatory language but that of the March 20, 2020 decision in ITServe Inc. v Cissna.

For more information, please contact our office for a free telephone consultation (15 minute) at 248-557-3645 or visit uscis.gov/contactcenter.

Sevahn Merian

Associate Attorney, Immigration Law Department

The Law Offices of Joumana Kayrouz, PLLC

phone: (248) 557-3645 fax: (248) 200-0645

email: smerian@joumanakayrouz.com

1000 Town Center, Suite 800 Southfield, MI 48075

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July 10, 2020

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