June 19, 2020
CLIENT UPDATE: Major Victory for H-1B Petitioners and Beneficiaries – USCIS Rescinds H-1B Policy Memoranda and Provides New Guidelines favoring H-1B Petitioners
Dear Valued Clients:
Last month federal court decisions, Serenity Info Tech, Inc. v. Cuccinelli and ITService Alliance Inc., v. Cissna ruled against the United States Citizenship and Immigration Services (“USCIS”) in their interpretation of 8 CFR § 214.2(h)(2)(i)(B), setting 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.
On Wednesday, June 17, 2020, USCIS rescinded two policy memoranda and issued new H-1B policy guidelines in light of the above decisions effective immediately. The first memorandum provided guidance on the requirement that the employer-employee relationship exists and will continue to exist throughout the duration of the validity period. The second memorandum provided guidance regarding H-1B petitions for workers that would be employed at one or more third-party worksites.
Below is a summary of the new policy guidelines:
- 8 CFR 214.2(h)(2)(i)(B) is rescinded
- – This regulation requires work itineraries for H-1B petitions with multiple employers, filed by third parties representing both the employees and the beneficiary.
- – 8 CFR 214.2(h)(2)(i)(B) is revoked until DHS or USCIS issues new adjudicative/regulatory guidance.
- Determining the employer-employee relationship
- – Officers must consider whether the petitioner has established at least one factor of the “hire, pay, fire, supervise, or otherwise control the work of” factors under 8 CFR 214.2(h)(4)(ii).
- – H-1B Petitioners must submit a Labor Condition Application (“LCA”) and a copy of the written contract between petitioner and beneficiary or a summary of the terms, in the case of an oral contract.
- Petitioner has the burden of proof to establish employment exists at the time of filing
- – A bona fide job offer must exist at the time of filing.
- – Petitioner must attest, under penalty of perjury, that all information on the petition is true, correct and complete.
- – If petitioner attestations and supporting documents meet standards and all other eligibility requirements are met, by a preponderance of evidence, the officer should not request additional evidence.
- – If petitioner does not establish eligibility by preponderance of evidence at the time of filing, then the officer should deny the petition and provide basis of the denial.
- Submission of contracts/legal agreements between the petitioner and third parties are not required to assess the employer-employee relationship or non-speculative employment in a specialty occupation
- – Petitioner is not required to submit contracts between the petitioner and third parties, however, the officer may consider any contract/legal contract submitted along with any other evidence provided.
- Evidence of day-to-day assignments is not required to establish specialty occupation
- – Evidence of specific day-to-day assignments is not required but may be included in the petition. The officer should review the position as described by petitioner.
- Guidance concerning “benching” is unchanged
- – Except in limited circumstances, “benching”—the act of putting employees on non-productive status, is prohibited by law.
- – Failure to work according to the terms of the petition may result in revocation of the petition, a Notice of Intent to Deny (NOID) or Notice of Intent to Revoke (NOIR).
- – Lack of work is considered a material change of the terms and conditions of employment and may affect eligibility and require filing of an amended petition.
- – Being put on a non-productive status or extended training, even if paid, may qualify as “No longer being employed in the capacity as specified in the petition” and is a basis of revocation on notice.
- – Non-productive status may be an indication that the beneficiary is no longer in a specialty occupation or may indicate a material change in the terms and conditions of employment. This does not apply to periods that are not subject to payment under beneficiary’s benefit plan or other statutes such as Family and Medical Leave Act or Americans with Disabilities Act.
- – There is no statute or regulation stating the maximum allowable time for non-productive status; the officer is left to their own discretion to issue an NOID or NOIR.
- – Officers are advised to not revoke approval of an original petition if petitioner files an amended or new petition unless the record shows a pattern or practice of failure to file an amended or new petition when required to.
- USCIS may approve H-1B petitions with validity periods shorter than requested by petitioner
- – USCIS must include an explanation as to why the validity period has been limited.
The new guidelines should result in tempered H-1B denials. This is a huge victory for H-1B beneficiaries and petitioners as rumors have mounted in the past couple months that the Trump administration may soon take action to restrict non-immigrant visa programs, including H-1B.
 Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8 (AD 10-24), issued January 8, 2010
 Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018.