May 27, 2020
Dear Valued Clients:
On May 20, 2020, the North District Court of Georgia ruled against the United States Citizenship and Immigration Services (“USCIS”) in their interpretation of 8 CFR § 214.2(h)(2)(i)(B). This statute requires H-1B Petitions, where services are performed in more than one location, to include an itinerary with dates and locations of services to be provided.
A 1995 memorandum issued by USCIS predecessor, Immigration and Naturalization Services (“INS”), stated it “could accept a general statement of the alien’s proposed or possible employment, since the regulation does not require that the employer provide the exact dates and places of employment.” However, in a Policy Memorandum, issued February 22, 2018, USCIS interpreted 8 CFR § 214.2(h)(2)(i)(B) to require detailed itineraries in order to demonstrate non-speculative employment and specialty occupation. This resulted in an increased number of denials of H-1B petitions that failed to provide such an itinerary.
The North District Court of Georgia struck down USCIS’ interpretation stating “[T]here is no basis in the INA or the Agency’s regulations for requiring a petitioner to submit evidence of specific, qualifying work requirements and micro-location information for every single day of the visa period. Accordingly, the Agency’s 2018 interpretation of the statute and regulations […] is owed no deference.” The Court stated further, “A petitioner may meet its burden of showing non-speculative employment, service in a specialty occupation, and the regulatory requirement of an itinerary, if applicable, without providing evidence with that level of micro-granularity.”
This Federal Court decision sets precedence that USCIS may no longer deny H-1B petitions on the basis of lacking detailed, day-to-day itineraries of the 3 year H-1B visa period. However, it is important to note that the Court did state that should USCIS “find a policy justification for requesting all of this information” the Agency may issue a new regulation subject to notice and comment.