On June 17, USCIS announced that it was rescinding two policy memoranda that formed the backbone of its heightened scrutiny of H-1B petitions. This appears to follow directly from USCIS’ major loss in the ITServe Alliance litigation and the related settlement.
The policy announcement is a sweeping reduction in the burden of evidence imposed upon H-1B employers. Under this policy, USCIS officers are directed to no longer require:
- Itineraries covering the entire 3-year H-1B period.
- Contracts between the Petitioner and its clients.
- Evidence of day-to-day work assignments.
Further, USCIS officers are directed to limit or shorten the approval period of H-1B petitions for clearly defined reasons (such as the validity period of the LCA accompanying the H-1B petition). Moreover, the duration of a contract or work order is specifically cited as an insufficient basis for shortening the duration of the H-1B approval period.
This policy shift is a great benefit to companies that place employees on temporary assignments, but USCIS is continuing to enforce other policies related to the H-1B program. For instance, USCIS will continue to enforce the requirement to amend H-1B petitions following a material change in the terms and conditions of employment. In many cases, changing a worker’s worksite or duties will constitute such a material change and require an amendment. If you have questions on whether an amendment might be required for one of your employees, please contact your regular contact with Global Immigration Partners.
In addition, this policy announcement discusses in detail the issue of benching H-1B workers. The announcement directs USCIS officers to closely review filings for any indications of benching as a basis for denying pending cases or potentially revoking previously approved petitions where it appears the worker stopped working or never worked as described in those petitions.
The policy does not affect the requirement to have an LCA certified for the intended location of employment. Employers filing an LCA and H-1B petition continue to make statements and attestations to the government under penalty of perjury about their intention to employ prospective H-1B workers at particular locations, at specific salaries, and in particular roles.
The policy change also does not change the requirement for Petitioners to demonstrate that the position meets the requirements of a specialty occupation, although USCIS will no longer have a basis to require client companies to issue letters to confirm a petitioning company’s job description.
Finally, the policy change puts greater emphasis on the regulatory definition of the employer-employee relationship. USCIS will now require employers to establish that they meet at least one element from the regulation. That is, show that they pay, hired, may fire, supervise, or “otherwise control” the prospective H-1B worker. For current employees, this should be straightforward and could be evidenced by pay records, employment agreements, or other similar documents. For prospective employees who have not yet begun working or not yet traveled to the United States, this may require other evidence to satisfy USCIS that a bona fide job offer is being extended.
This policy change is effective immediately and applies to all H-1B petitions now pending before USCIS. That includes cases on appeal, on motion to reopen, or facing an intent to deny or revoke. USCIS does not appear interested in retroactively applying the policy to cases denied under the rescinded memoranda, but in litigation against the agency, it might be expected that they would be amenable to settling rather than defending these disavowed policies.
Even as this announcement limits USCIS’ review of H-1B petitions, there are indications that the overall trend of this administration towards heightened enforcement will continue. Specifically, there are continuing rumors of new regulations to amend (and presumably narrow) key regulatory definitions of the employer-employee relationship and of specialty occupation.
If you have questions about how this policy change may affect your company or any of your employees, please contact Global Immigration Partners.