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USCIS has to backtrack on H1Bs after ruling

By Dev B. Viswanath, Esq.

On June 17, 2020, USCIS issued a new policy memorandum and withdrew a memo from February 2018 on “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.” USCIS also withdrew their “Neufeld” memo from January 2010 where USCIS used a strict test to determine is an “employer-employee” relationship existed, including work performed by an H-1B visa holder at an employer’s workplace. The withdrawal of the memos resulted from an agreement USCIS reached with IT Service Alliance, an information technology trade group, to overturn more than 200 H-1B denials.

The new policy memo could result in lower H-1B denial rates and fewer Requests for Evidence (RFE). Before the settlement, many employers had to deal with USCIS’s interpretation of an employer-employee relationship and short-term approvals of H-1B petitions. Under the old Neufeld memo, USCIS had the authority, in practice, to deny an H-1B petition unless an employer could hire, pay, fire, supervise, and otherwise control the work of any such employee. The word “and” conflicted with the USCIS regulation and the Department of Labor’s definition of an employer because they used the word “or” instead of “and.” Under the new policy member new USCIS adjudicators must follow the agency’s regulation: “The officer should consider whether the petitioner has established that it meets at least one of the ‘hire, pay, fire, supervise, or otherwise control the work of’ factors with respect to the beneficiary.”

When requesting additional evidence to determine if a bona fide job offers exists, “A bona fide job offer must exist at the time of filing,” The new policy memo states: “The petitioner has 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 the petitioner’s attestations and supporting documentation meet this standard, then the officer should not request additional evidence and should approve the petition, provided all other eligibility requirements are met by a preponderance of the evidence.”

Previously an employer of an H-1B visa holder had to produce all the contracts the employee would work on over a three-year period. Under the new USCIS policy memo states, “In support of the petition, an H-1B petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner and third parties.” In addition, H-1B approvals can now be granted for periods shorter than the time period requested by the H-1B petitioner.

The new policy memorandum passed by USCIS should help decrease H-1B denials and reduce the obstacles employers have to go through to have an H-1B petition granted.

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