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USCIS RESCINDS MEMOS ON EMPLOYER – EMPLOYEE RELATIONSIPS AND ITINERARY OF SERVICES
Memos Rescinded As Part of Court Settlement
As part of a court settlement in the ITServe Alliance case, the USCIS agreed to rescind the two restrictive memos that impacted H-1B petitioners, especially in cases involving Third Party Placements. These memos include:
- Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8 (AD 10-24), issued January 8, 2010 (the Neufeld Memo);
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018.
The rescission of the memos means that the USCIS can no longer deny cases based on a restrictive interpretation of what constitutes Employee-Employer relationship or if the Petitioner does not provide End Client contracts for the duration of the requested validity.
On the issue of the Employer Employee Relationship, the court stated that per USCIS regulations “an employer-employee relationship with respect to employees … (is) indicated by the fact that (the petitioner) may hire, pay, fire, supervise, or otherwise control the work of any such employee…” Consequently a petitioner is only expected to meet one of these criteria. As a result, the USCIS in its latest guidance Memo, PM-602-0114, issued on June 17, 2020 states that adjudicating officers should establish whether the petitioner meets one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. The Memo further states that a bona fide job offer should exist at the time of the filing and that the petitioner is expected to attest, under penalty of perjury, that the information on the employment and that contained in the Labor Condition Application (LCA) is truthful and accurate.
In withdrawing the Contracts and Itineraries Requirement Memo, the USCIS has also agreed that it will no longer require End Client contracts for the duration of requested validity. The courts ruled that as long as the Employers / Petitioners paid the H-1B beneficiaries salaries as per the LCA and met other regulatory requirements, they would continue to meet the legal requirements for the visa benefit.
Also agreed, as part the of this settlement, are the following:
- the USCIS will “re-open and adjudicate” individual agency decisions on H-1B adjudications that were the subject of the ITServe Alliance lawsuit against USCIS (i.e., primarily the cases of its members);
- USCIS will not issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner, unless such decisions include or are accompanied by a brief explanation as to why the validity period has been limited.
- Additionally, Petitioners who have been subjected to past denials or approvals of short duration are able to go to the Courts for re-dress on this issue. With these rescissions in place, all cases subjected to denials or approvals for short duration may be overturned through court action. Unless the Petitioner belongs to the ITServe Alliance, they will not have the adverse decisions automatically redressed.
This may be yet prove to be a pyrrhic victory for proponents of immigration. This case may not be the last word on H-1B visa matters. The USCIS is contemplating regulatory measures to severely curtail and restrict H-1B visas, through a series of measures as yet fully unknown. These measures will need to go through a rule-making process and have a comment period before the enactment of regulatory actions.
While the Trump Administration is likely to announce a temporary ban on the entry of those with nonimmigrant visas, including H-1Bs, it seems that those applying through the H-1B Cap or for renewals or amendments in the next few months, will benefit from the rescission of these memos for when the ban is lifted.
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