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Category: H-1B

New USCIS Guidance on Adjudication of H-1B for Third-Party Worksites

Posted June 23, 2020Cheryl Kilborn - Sr. AssociateH-1B



U.S. Citizenship and Immigration Services (USCIS) recently rescinded two policy memoranda impacting adjudication of H-1B petitions for employees placed at third-party locations. These types of petitions have historically been denied at a high rate, particularly within the IT industry, based on the now rescinded policy memoranda, because USCIS determined that either the third-party is the actual employer (as opposed to the H-1B petitioner) or because specific and detailed job duties were not provided with the request for H-1B classification.

USCIS issued new policy guidance in place of the rescinded policy memoranda. This new policy guidance is effective immediately and applies to any pending or new request for H-1B classification, including motions on and appeals of revocation and denials of H-1B classification.

Specifically, the new policy guidance provides that:

  • H-1B petitioners can demonstrate the requisite “control” for an Employer-Employee relationship by meeting any one of the regulatory criteria: “hire, pay, fire, supervise, or otherwise control the work of.”
  • To demonstrate the existence of a bona fide job offer, H-1B petitioners are no longer required to submit third-party contracts, evidence of specific non-speculative day-to-day assignments, or detailed itineraries when an H-1B employee will work at more than one location.
  • Reasonable periods without work are allowed for H-1B visa holders as long as they continue to be paid (i.e. non-productive status). In that instance, however, USCIS maintains discretion to determine whether an amended or new petition was required and/or to deny an extension or change of status request for failure to maintain status.
  • USCIS has the authority to grant H-1B visas for less than the requested period but in doing so, must provide its reasoning behind any partial approvals. We note that, anecdotally, it appears USCIS has been issuing H-1B visas for the full requested period in light of the new policy guidance.

This new policy guidance is the result of litigation in which approximately thirty-three IT consulting companies challenged USCIS’s authority to deny H-1B petitions (ITServe Alliance, Inc. v. Cissna). The suit alleged improper interpretation and application by USCIS of the employer-employee, non-speculative work assignment, and itinerary requirements.

Notably, while USCIS no longer requires evidence of specific non-speculative day-to-day assignments to demonstrate a bona fide job offer, H-1B petitioners are still required to demonstrate the nature of the specialty occupation (through a detailed job description) and the individual qualifications of the H-1B employee. Under the regulations, an H-1B petitioner must demonstrate the specialty occupation through evidence that a degree is required (in a specific specialty) to hold the position, and that the H-1B employee has the requisite degree, or that the H-1B employee has the experience to perform in the position without such degree.

USCIS continues to issue requests for evidence challenging whether a position is a specialty occupation and/or whether the H-1B employee is qualified to perform the position based on individual education and/or experience. Meltzer Hellrung represents employers with H-1B filings, and with responding to complex requests for evidence, notices of intent to deny or revoke, and appeals on these issues and the ones noted in the new policy guidance.

Please reach out to your designed Meltzer Hellrung attorney with questions or email us at consultation@meltzerhellrung.com

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Premium Processing to Resume in June

Posted May 29, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

On March 20th USCIS suspended premium processing for all I-129 and I-140 petitions. On May 29th, USCIS announced a phased process to resume premium processing for all petitions over the next month.

  • June 1st – I-140 petitions will be eligible for premium processing.
  • June 8th – Pending H-1B petitions that are not subject to the cap, and all other pending I-129 non-immigrant (such as TN, O-1, and L-1) applications, that were filed before June 8th will be eligible for premium processing upgrades.
  • June 15th – Cap exempt H-1B employers (such as universities, non-profit research organizations, etc.) and employees (such as Conrad/IGA waiver recipients) can file the premium processing request concurrently with the I-129 (or request premium processing upgrades if filed after June 8th).
  • June 22nd – Premium processing for all I-129 petitions resumes and can be filed concurrently with the I-129. This includes cap-subject H-1B petitions.

Please contact your designated Meltzer Hellrung attorney with any questions.

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Data Entry Delays for FY2021 H-1B Cap Receipt Notices

Posted April 13, 2020Stephanie Wedel - Sr. AssociateH-1B

On April 13th U.S. Citizenship and Immigration Services announced that data entry and receipt notices for petitions filed under the FY 2021 Cap would be delayed until at least May 1, 2020 due to the coronavirus (COVID-19).

Once data entry resumes, USCIS will complete the petitions in the order in which they arrived at the service centers. The receipt date will reflect the date that the petition was received at the service center, even though data entry will not take place until at least May 1, 2020.

This delay in data entry will result in a general delay in the processing and adjudication of the FY 2021 Cap petitions.

The data entry delay will not affect the specified filing window listed on the registration selection notices.  All FY 2021 Cap petitions must be submitted within the filing window listed on the registration selection notice, or USCIS will reject or deny the petition.

USCIS is requesting that Petitioners wait to request status updates for FY 2021 H-1B Cap petitions until receipt notices have been issued.

In addition, USCIS may also transfer petitions among the service centers to balance workloads and reduce processing times. However, all FY 2021 H-1B Cap petitions should still be filed at the service center listed in the selection notice. A transfer notice will be issued for any petitions that are moved to a different location.

Please reach out to your designated Meltzer Hellrung attorney if you have any questions.

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FY 2021 H-1B Cap Lottery Petitions for Selected Candidates are Now Eligible for Filing

Posted April 2, 2020Jennifer Salviati - Sr. ParalegalH-1B

On April 1st, USCIS announced that Cap H-1B petitions for all categories may now be filed. USCIS reminds employers that Cap H-1B petitions may only be submitted for H-1B candidates who have been properly entered in the Cap lottery electronic registration system and have subsequently been randomly selected in the electronic lottery. The selection of a particular candidate is designated by the term “Selected” appearing next to a candidate’s name in the Cap Registration employer portal and by the issuance of a registration selection notice.

Cap subject H-1B petitions for selected candidates must be filed within the time period indicated on the selection notice and sent, via standard, paper filing to the USCIS Service Center indicated on the selection notice.

Selection of a candidate in the Electronic Cap H-1B Lottery does not indicate higher chances of H-1B petition approval, and petitioners and candidates must still meet all statutory and regulatory criteria for eligibility to file an H-1B petition, including award of an advanced degree from a United States-based institution, if applicable, at the time of filing the petition.

New for the 2021 Fiscal Year, the electronic registration system received registrations for nearly 275,000 discrete H-1B candidates. Roughly 46% of these candidates were holders of advanced degrees from United States-based universities. Candidates who are citizens of China and India comprised roughly 81% of all individuals registered in the selection process, with 13.2% and 67.7% of all registrations respectively.

If you have any questions about this year’s Cap H-1B process, please contact your Meltzer Hellrung attorney.

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USCIS and DOL Extend Deadlines

Posted March 27, 2020Matthew Meltzer - Partner and Co-FounderGreen Card, H-1B

USCIS and DOL have extended some deadlines in response to COVID-19.

USCIS

USCIS has extended the deadline for any Request for Evidence (RFE) or Notice of Intent to Deny (NOID) issued between March 1st and May 1st by 60 days. This extension does not apply to RFE's and NOID's issued previously that are coming due during this period.

Department of Labor

Prevailing Wage Requests and PERM 

DOL has extended the response time given on certain  inquiries related to prevailing wage determinations and labor certification (PERM) applications. Where a deadline falls between March 13, 2020 and May 12, 2020, the agency will automatically extend that deadline to May 12, 2020. This extension applies to:

  • Requests for audit documentation;
  • A response to a Notice of Deficiency;
  • Submissions of recruitment reports;
  • Business verification and sponsorship documentation, supervised recruitment requests;
  • Requests for reconsideration of a prevailing wage determination; and
  • Any other request for information issued by OFLC containing a due date.

DOL is also expanding the 180-day window for posting a PERM Notice of Filing aka Internal Posting Notice by 60 days. Under the COVID-19 accommodation, DOL will accept notices that were posted within 60 days after the 180-day deadline has passed, provided that recruitment began between September 15, 2019 and March 13, 2020.

Similarly, DOL has agreed to extend the 180-day PERM recruitment window by 60 days for all PERM filings that occur by May 12, 2020. 

Labor Condition Applications 

For employees working from home in the same commuting area as the work location listed in the petition and prior LCA, a new LCA is not required.

However, LCA posting notices should be posted at the employee’s home for ten consecutive business days or posted digitally on an intranet, and the posting notices must be placed in the Public Access File when taken down. For assistance with creating notices, please contact your Meltzer Hellrung attorney.

During the COVID-19 emergency, DOL will allow employers to post the notice of the filing of a LCA up to 30 calendar days after the H-1B, H-1B1 or E-3 worker begins work at the new home worksite location. This is in contrast to the regulations, which require that notice be made on or before the worker changes worksites. 

For additional questions please reach out to your Meltzer Hellrung attorney.

 

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