USCIS recently lost a court case against ITServe Alliance that challenged USCIS H1B policy memos on employer-employee relationship and itinerary rules. As part of the court judgment and settlement with IT Serve, USCIS said that they will cancel the Year 2010, 2018 Policy memo and not use the itinerary requirements too. On June 17th, 2020 USCIS formally issued a H1B Policy memo related to the settlement and gave guidance for future H1B adjudications. We will cover all those aspects and summary in this article.
As a background, you may read USCIS Settlement with ITServe Alliance on H1B Policies
USCIS New H1B Policy Memo on Employer Employee Relationship, Others
USCIS as part of the new H1B policy memo on that was published on June 17th, 2020 announced below changes that will apply for all H1B petitions adjudication with USICS from now.
Cancel H1B Neufeld Memo on Employer-Employee Relationship from 2010
USCIS announced that they are formally cancelling (rescinding) the H1B Employer-Employee Relationship Memo from 2010, aka as Neufeld Memo and USCIS will not apply the requirements in the memo for the decision on any new or current pending H1B petitions. The previous H1B policy memo from 2010 had many requirements tied to contracts, agreements, other guidelines to prove the employer-employee relationship when someone was place at client site (third party worksite). This was one of the main policy memos that was used for many RFEs and Denials in the past for third party worksite or client placement related H1Bs.
Cancel H1B memo on Contracts, Itineraries Requirement from 2018
USCIS also announced that they are formally cancelling the H1B Contracts, Itineraries Memo from 2018 and they will not apply the requirements in the memo for adjudication of the petition from now. This policy memo was one of the key ones that was announced by Trump Administration that had a huge impact on approvals at IT services companies with many denials. For instance, Cognizant H1B Denial Rate was 30% , Cap Gemini H1B Denial Rate was 40%. The requirements in this old memo asked for many details from client like day to day activities, detailed contracts for entire duration of work, work orders, etc.
New guidelines for H1B Employer Employee Relationship
As per the new H1B policy memo, USCIS will consider an H1B Sponsor to have employer-employee relationship, if they meet one of the four things – Hire, Pay, Fire, Supervise or Control the work. This was previously interpreted wrongly and USCIS used to ask that they should have the right to control work at client site and denied H1B petitions on that basis. Employers were required to submit client letters, contract, work order documents in the past to prove the employer-employee relationship.
Need to have only one of Hire, Pay, fire, Supervise, or Control work.
Now, with the new guidance, there is no need to submit detail client letters and documentation. You need to submit the below documents to prove the employer-employee relationship.
- Labor Condition Application (LCA)
- Job offer letter or written agreement of the job offer between H1B sponsor and the employee.
You may watch the below YouTube Video as well, that covers the entire new policy memo.
Bona fide Job Offer at the time of H1B filing
As per the new memo, there should be a genuine job offer at the time of filing of H1B. The employer or H1B Sponsor need to sign under oath(penalty of perjury) indicating that there is genuine job offer for the employee and it is in specialty occupation. It is up to the Employer to prove that the job exists in specialty occupation. USCIS would not issue an RFE, if the documentation submitted meets this standard. Also, they would not judge the petition for the detailed day to day activities, which are the itinerary requirements, for the job in third party locations. Also, if the USCIS denies a petition based on this, they will give detail explanation of the same.
New Guidelines on Chain of Contracts, Client Letters
As per the new guidelines in the updated memo, there is no need for the H1B employer to submit any contracts, legal agreements (like MSA, SOWs), or client letters with details on the exact work, details on duties for entire duration of work, etc. to prove employer-employee relationship or specialty occupation related work for entire duration for the petition. USCIS will not ask for such contracts. But, if an employer submits these documents, then USCIS may use them as evidence for eligibility. Also, it is up to employer to demonstrate all the basic requirements to apply H1B petition and for employee to qualify for the same.
Guidance on Non-speculative Specialty Occupation Work
In the past many day to day activities assignments related documents like client letters, SOW, contracts, project plans, etc. were submitted for proving that there is specialty occupation work for the H1B employee. Now, as per new policy, there is no need to submit any of these. USCIS will use the H1B position related info like job description as submitted by H1B sponsor to determine, if it fits the specialty occupation or not. The employer may submit all other additional documents and supporting activities, if they choose to do it. But, not mandatory.
The H1B petition that is filed by employer for a position must meet all the standard H1B regulatory requirements for specialty occupation. USCIS will deny a petition, if the H1B sponsor has not provided enough evidence that indicates that the employee will work in a specialty occupation. Except the day to day activities requirement, they need to submit other documentation that proves that the position is a specialty occupation position.
Guidance on Benching (not working) but still paid on H1B
As per USCIS, except in certain cases, benching (not working) is not allowed. This is for US worker protections related reasons. H1B employees need to continue working as per the terms and conditions of the H1B approval given by USCIS. If USCIS finds that you are not following the terms and conditions, they can revoke petition for not maintaining status.
Being on Bench during H1B is a Material Change
If H1B employee goes on bench ( not working, loses project with client) then it is considered a material change and employer has to file an H1B Amendment for the same. Also, if the employee is in bench for a long period of time or in training, then it may not qualify for specialty occupation and it will be violation of the terms for H1B position. The only exceptions are Family or Medical leave, including leave as per disabilities act.
Maximum Duration of Bench on H1B, NOIR, NOID
There is no official rule or regulation that defines the maxim period for bench ( non-working time). It is up to USCIS discretion to see how the employee is using the amount of bench period for giving approval. USCIS officer can issue a Notice of Intent to Deny (NOID) or Notice of Intent to Revoke(NOIR), if they believe that the employer was improperly benched and not working as per the H1B approval terms and has long duration on bench.
Revoking of Original H1B Petition
USCIS will not revoke the original H1B petition, when an amendment or new petition is filed when there are change of terms of the H1B position. USCIS has discretion to revoke the original petition, if there is abuse by employers and not filing amendments or new petitions, when they are supposed to file (for example benching or change in location, etc.)
Guidance on Itinerary Requirement
USCIS will not use the itinerary requirement and ask to submit day to day activities for judging the petition. They plan to issue guidance in future or go through regulatory process to give more details on this requirement. Until then, this will not be used for adjudication.
Guidance on Short term Approvals for H1B
USCIS may issue short term approvals than the time period requested by the employer. If they do so, they will give details on why the duration was shorter than requested by employer. It could be situations where LCA duration is shorter, where they would get shorter approval time.
The new policy changes apply to all pending and new H1B petitions with USCIS. It will also apply for the motion to re-open or appeals cases that are pending with USCIS for revocations or denials
No, if the decision is already done, they will not revert back automatically. If you have anything pending, it will apply to that.
That’s about it folks. It is a big relief for many working in IT Consulting or for IT Services companies. While some are very positive, it also opens up doors for some to abuse the flexibilities…We need to see, how USCIS will handle in future.
What do you think of the changes ? Share your thoughts on the new changes.