USCIS Withdraws Policy Memos That Increased Denials for H-1B Visas

On May 20, 2020, USCIS agreed to a settlement with ITServe Alliance that overturned the policies that restricted employers and H-1B visa holders. The agreement rescinded two policy memoranda and established a new policy memo in their place. The two previous policy memoranda included:

• Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Issued in January 2010)
• Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Issued February 2018)

The new policy memo is effective immediately. This means USCIS officers should not apply the previous memoranda to any pending requests or new requests for H-1B visa classifications.

What Does the New Policy Memo Mean for Employers?

Before the creation of the new policy memo, employers faced several problems with the existing policies that were implemented by the USCIS. This included employer-employee relationships, requests for evidence on proof of employment, contracts, validity periods, and more. Employers can expect to see the following changes under the new policy memo:

• Employer-Employee Relationship: USCIS adjudicators should apply the existing regulatory definition in assessing an employer-employee relationship. The officer should consider if the petitioner established that the relationship meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary.
• Requests for Evidence on Proof of Employment: Petitioners have the burden of proof to establish that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation. If their evidence meets this standard, the officer should not request additional evidence and approve the petition if all other requirements are met.
• Contracts: H-1B petitioners are not required to submit contracts or legal agreements between the petitioner and third parties. While this is true, it is unclear about how USCIS adjudicators will interpret their discretion to request contracts indicating future work.
• Validity Periods: USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period the petitioner requested. This decision is required to come with an explanation regarding why the period has been limited.

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