Court Invalidates H-1B Visa Policies That Increased Denials
On March 10, 2020 U.S. District Judge invalidated the key U.S. Citizenship and Immigration Services (USCIS) memos and policies that have caused skyrocketing H-1B denial rates and harsher treatment for information technology (IT) services companies employing foreign-born computer professionals.
On June 17, 2020, USCIS rescinded -
A February 2018 memo on “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”
A January, 2010 “Neufeld” memo to determine if an “employer-employee” relationship existed.
What does the new policy memo mean for employers?
An analysis conducted by the National Foundation for American Policy (NFAP) showed that the denial rates for new H-1B petitions jumped from 6% in FY 2015 to 30% in the first quarter of FY 2020. NFAP also noted that the Information Technology & business services companies were the hardest hit. The new memo could mean lower H-1B denial rates and fewer Requests for Evidence.
Key aspects of the new memo.
The new policy memo addresses two major aspects -
Itinerary Rule and Short USCIS approvals
Employer-Employee Relationship - before the judgement USCIS could deny a petition unless an employer could hire, pay, fire, supervise AND otherwise control the work of an employee. The use of the word “and”, however, conflicts with the Department of Labor’s definition, which uses “or” instead of “and”. Going forward, the officer would need to consider a petition if it meets at least one of the factors mentioned above.
Request for Evidence on Proof of Employment - the new memo advocates that if the petitioner (employer) can provide attestations and supporting documents to prove that the employment exists at the time of filing and that the job is a speciality occupation then the officer “should not request additional evidence and should approve the petition”, provided all other eligibility criteria are met.
Contracts - The memo states that the petition is no longer “required by existing regulation to submit contracts or legal agreements between the petitioner and third parties.” How USCIS officers interpret this still remains to be seen.
Limiting Validity Periods - Under the new memo, if an officer were to approve an H-1B validity period that is shorter than requested by the petitioner, the officer’s decision “must be accompanied by a brief explanation as to why the validity period has been limited.”
To read more about the case and the explanation of the new memo, please read the articles below -
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.