USCIS to Withdraw Certain H1B Policies!
H-1B denials have skyrocketed since 2017, especially following the BAHA Executive Order. In February 2018, USCIS issued further guidance specifically placing additional documentation requirements for H-1B employees working at client sites or third-party worksites. As a result, staffing and consulting companies have seen the highest H-1B denial rates.
In response, employers filed cases against the new H1B regulations. After filing, some of those denials were reversed and approved by USCIS without further delay. However, the cases affected only specific employers and not USCIS policy.
Here are the terms of the settlement:
Within 90 days of the settlement, USCIS will withdraw its guidance known as the “Contract and Itinerary Memorandum” that required employers to provide additional documentation to prove that beneficiaries would be employed in a specialty occupation throughout the requested period. The guidance required detailed documentation, including evidence of work assignments, copies of all contractual agreements, itineraries with specific dates and locations, and copies of detailed statements of work signed by the end-user client.
USCIS will broaden its interpretation of what constitutes an employer-employee relationship to conform with the Department of Labor definition, which states that an employer-employee relationship is “indicated by the fact that the employer may hire, pay, fire, supervise, or otherwise control the work of any such employee.
USCIS will stop its practice of approving petitions for time periods shorter than those requested by the employer without a brief explanation of the legal justification.
USCIS will start reopening and make decisions about approximately 200 cases involved in the consolidated case, and, importantly, will not use overly restrictive standards. However, USCIS has not yet issued any specific guidance regarding the ITServe Alliance settlement and how it might be used by other employers with previously denied cases.