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U.S. Citizenship and Immigration Services (USCIS) recently rescinded two policy memoranda impacting adjudication of H-1B petitions for employees placed at third-party locations.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types of petitions have historically been denied at a high rate, particularly within the IT industry, based on the now rescinded policy memoranda, because USCIS determined that either the third-party is the actual employer (as opposed to the H-1B petitioner) or because specific and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USCIS issued new policy guidance in place of the rescinded policy memoranda.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