New USCIS Guidance on Adjudication of H-1B for Third-Party WorksitesPosted June 23, 2020 H-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U.S. Citizenship and Immigration Services (USCIS) recently rescinded two policy memoranda impacting adjudication of H-1B petitions for employees placed at third-party locations.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types of petitions have historically been denied at a high rate, particularly within the IT industry, based on the now rescinded policy memoranda, because USCIS determined that either the third-party is the actual employer (as opposed to the H-1B petitioner) or because specific and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USCIS issued new policy guidance in place of the rescinded policy memoranda.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.
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