U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum that rescinds previous guidance related to the employment of H-1B workers at third-party worksites and announces additional guidance on H-1B adjudications.

Key points:

  • USCIS has rescinded the 2018 Contracts and Itineraries Requirements Memo and the 2010 Employer-Employee Relationship Memo in their entirety.
  • The new guidance provides that H-1B petitioners must demonstrate they meet “at least one” of the factors of an employer-employee relationship: the ability to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.
  • USCIS will not require H-1B petitioners to provide contracts with third parties, detailed itineraries when an H-1B worker will be placed in more than one worksite location, or evidence of specific day-to-day assignments.
  • USCIS must now provide a written explanation for any shortened validity period.
  • USCIS will assess whether time in non-productive status or extended periods of training are “material changes” affecting eligibility.

Background: The adjudication guidance contained in the 2018 Contracts and Itineraries Memo and 2010 Employer-Employee Relationship Memo has faced increasing challenges through litigation. Recent court decisions, such as ITServe Alliance, Inc. v. Cissna, have found many of the policies in these memos to be invalid or unenforceable. The agency’s rescission of these memos and issuance of additional guidance is the result of this litigation and a related settlement.

BAL Analysis: The rescission takes effect immediately and applies to pending and new H-1B filings, including motions and appeals. The memo states that USCIS will no longer require certain types of evidence, such as a detailed itinerary when the H-1B worker will be placed in more than one worksite location, contracts between the petitioner and any end-client or clients, or detailed descriptions of the day-to-day assignments of the H-1B worker.

However, USCIS may still deny petitions for a variety of reasons, including not providing sufficient evidence that specialty occupation work exists for the worker. The new guidance also instructs USCIS officers to assess whether H-1B workers have been employed according to the terms and conditions of previous approvals, including time the worker spent in non-productive status or extended periods of training.

BAL continues to assess the new guidance and will provide additional analysis to clients in the near future.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.