On June 17, 2020 USCIS rescinded 2 Policy Memoranda related to H-1 visa. This blog post will focus on 2 areas that were impacted by the rescission:
One of the H-1B requirements is that there is a valid employer-employee relationship between the H-1B petitioner and beneficiary.
H-1B regulations define the U.S. employer as:
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee
(3) Has an Internal Revenue Service Tax identification number.
As the District Court of District of Columbia pointed out in its recent decision ,following the issuance of the 2010 Neufeld Memo and 2018 Contracts and Itineraries Requirements that added standards to evaluate an employer-employee relationship, USCIS has been denying H-1b visa petitions for failure to demonstrate employer-employee relationship. The Neufeld Memo from 2010, listed 11 factors that should be considered when determining whether there exists a valid employer-employee relationship and the USCIS officers were supposed to use the totality of circumstances standard.
The District Court of District of Columbia stated in its recent decision that “(t)he use of “or” distinctly informs regulated employers that a single listed factor can establish the requisite “control” to demonstrate an employer-employee relationship.” This formulation makes evident that there are multiple ways to demonstrate employer control, that is, by hiring or paying or firing or supervising or “otherwise” showing control.” The District Court of Columbia ruled that USCIS must consider each criterion listed above sufficient to establish the employer-employee relationship including, but not limited to, “otherwise” showing control.
The new USCIS Policy Memorandum issued in June 2020 indicates “the USCIS officer should consider whether the petitioner has 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.”
Proof of non-speculative work assignments
The 2018 Contracts and Itineraries Requirements indicated that “when a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition.”
The 2018 USCIS Memorandum than indicated that if the petitioner does not provide a detailed itinerary that includes dates and locations of the services to be performed by the Beneficiary, the H-1b petition may be denied. The Memorandum also indicated that the petitioner should submit contracts or work as evidence that the beneficiary will be employed in the specialty occupation. The 2018 Memorandum indicated that even though the H-1B validity period may be up to 3 years, USCIS will limit the validity to the length of time when you will be placed in non-speculative work as demonstrated by contracts, statements of work, and similar types of evidence.
On May 20, 2020 USCIS settled with ITServe Alience, Inc. and agreed to rescind the 2018 Contract and Itinerary Memorandum and the 2010 Neufeld Memorandum. On June 17, 2020 USCIS issued a Policy Memorandum in which it rescinded the 2018 and the 2010 Memoranda
The new USCIS Policy Memorandum issued on June 17, 2020 indicates that the petitioner is not required by an existing regulation to submit contracts or legal agreements between the petitioner and third parties. However, the petitioner is still required to demonstrate eligibility for the H-1B eligibility.
The Memorandum further indicates that while the Petitioner is not required to document all day-to-day assignments, the petitioner must meet all statutory and regulatory requirements, excluding the itinerary requirement. If the officer finds that a petitioner has not established, by a preponderance of the evidence, statutory or regulatory eligibility for the classification, the officer should articulate that basis in denying the H-1B petition.
The new USCIS Memorandum also USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. However, the decision must be accompanied by a brief explanation as to why the validity period has been limited. This includes, but is not limited to, instances in which the certified LCA has a validity period of shorter duration than that specified on the H-1B petition.
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