On June 17, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum adjusting some petition requirements for H-1B nonimmigrants. It was prompted to change some of its requirements for H-1B nonimmigrant petitions after the IT Serve Alliance lawsuit took place.
In the new policy memorandum, USCIS rescinds two of its former policy memos concerning the definition of employer-employee relationships and other requirements for third-party worksites, while issuing new guidance for its officers. It advises officers:
- To consider an H-1B petitioner and beneficiary to have an employer-employee relationship if they meet just one of the “hire, pay, fire, supervise, or otherwise control the work of” factors.
- The H-1B petitioner must still establish that employment exists at the time of filing in order for petitions to be approved.
- Officers can not require the chain of contracts or legal agreements between the H-1B petitioner and third parties to be provided, but the H-1B petitioner “must demonstrate eligibility for the benefit sought.” Thus, the use of contracts or legal agreements, though not required, may potentially serve as a way to show eligibility.
- Evidence of day-to-day assignments are no longer required and though a petition would not be denied due to petitioners not submitting day-to-day assignments of the beneficiaries, the petitioner could submit assignments as a way to prove its beneficiary will be employed in a specialty occupation.
- Officers should not apply the itinerary requirement in “limited instance of applicable H-1B adjudications” until the DHS or USCIS issues new guidance on the requirement, but should continue to apply the itinerary requirement for H-1B petitions filed by agents.
The USCIS did assert in its new policy memorandum that if a beneficiary is in “non-productive status” or has been “benched,” even if still being paid, USCIS officers may deny H-1B extensions, change of status requests, or revoke approval of H-1B nonimmigrant classification. The memorandum also states that the validity period of an approved H-1B petition may be limited, as long as an explanation is provided. Though President Trump's new proclamation suspends immigration for most H-1B applicants outside of the U.S., the USCIS' memo will still provide valuable guidance for H-1B beneficiaries that are applying for extensions or fall under an exception to President Trump's proclamation.
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