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.
This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call me at 214-494-8033, complete my contact form