The United States Citizenship and Immigration Services (USCIS) lost an important case which is a win for H-1B employers on March 10th, 2020 that establishes paramount H1B visa related policy memos created by the USCIS in the last few years. The USCIS reached an agreement this week with the plaintiff, the business group ITServe Alliance, a group that represents IT services organizations who filed the lawsuit in late 2018 challenging USCIS policies as outlined below that impacted information technology employers who hire software professionals working at third-party worksites. USCIS’s prior “Neufeld” memo issued on January 8, 2010, governs the authority to deny H-1B petitions based on a potentially restrictive interpretation of the H-1B employer’s “employer-employee” relationship with the employee, including when an H-1B visa holder performs work at a customer’s location. Pivotal policies such as the aforementioned have been revoked.
Over the last decade, USCIS has introduced many H1B policies and some of them were really subject to their own interpretation, and USICS released policy memos without following any of the proper 9 Step Federal rule-making processes or related guidance from Congress. Such negative decisions have resulted in H-1B denial rates at 30 % or more. Below are a couple of the key policies that are areas of contention.
We, at Emandi Law Firm, bring you the major H1B Policy Changes that are effective from Settlement with USCIS:
2018 H1B Policy memo canceled: USCIS’s 2018 H1B policy memo asked for many details and contracts related to H1B holders working at third-party worksite such as SOWs (statements of work), work orders, other contracts, detailed client letters confirming the work assignments and that too documenting the entire duration, etc. All of these requirements impacted most of the H1B approvals from IT Services companies since it was made effective by USCIS resulting in numerous H-1B RFE’s ( requests for evidence) and H-1B denials.
Re-adjudicate all cases part of the Lawsuit: USCIS will reopen and re-adjudicate all the H1B cases https://ativanusa.com/contact-us/ that were part of this litigation within 90 days from this settlement. If there is an RFE, the employer will receive another 60 days to respond.
Employer-Employee relationship clause not applicable: In the lawsuit context, the employer needs to have the right to hire, fire, pay, supervise, or control the work. USCIS interprets that “OR” as “AND” by issuing RFEs telling that employer has to control the work in Third-party placement situations. With the lawsuit settlement, USCIS would no longer use that interpretation and subsequently, the number of RFES may diminish.
USCIS to meet deadlines in the settlement, COVID Clause: The settlement dictates that USCIS will have to honor the settlement as per the deadline of 90 days from the day of settlement. Due to COVID-19, if USCIS cannot implement these guidelines, then USCIS may extend by 60 more days and inform ITServe on the same.
No shorter duration of approvals without explanation: USCIS has given a shorter duration of approvals than what the employer requested in the past. In the lawsuit, IT Serve showed proof of USCIS issuing one day of H-1B approvals. Now, with this settlement and court case judgment, USCIS will not issue a shorter duration of approvals than what is requested. If USCIS does do so, a brief explanation of the reason for the same must be provided.
The judge ruled that if Congress intended for these now revoked policies, Congress should have changed the law or the USCIS should have issued new regulations rather than USCIS creating its own unjustifiable interpretation to implement policies under the Trump administration. As before mentioned for the past 10 years, H-1B denial rates had risen to levels of 30% or more leaving employers stranded without skilled workers to perform jobs and workers without legal status.