By Radhika Balaji
US Citizenship and Immigration Service’s settlement with ITServe Alliance will dramatically change the way H-1B visas have been adjudicated for the last 10 years for Information Technology companies. In its March 10, 2020 ruling in the ITServe Alliance lawsuit, the District Court opined that the two key policy memos from 2010[1] and 2018[2], were inconsistent with the previous regulations and that the USCIS violated the laws since these memos did not pass a formal rule making policy.
This Settlement has led the USCIS to issue a new Policy Memo on June 17, 2020 (June 2020 memo) which in effect rescinds the 2010 and 2018 memorandum. The 2010 memorandum required an employer to establish an employer-employee relationship throughout the H-1B period while the 2018 memorandum expanded this requirement for H-1B employees placed at third party work sites. These policy memos have long placed a heavy burden on employers and H-1B employees increasing the denial rates on these types of petitions.
The June 2020 memo lays out guidance to USCIS officers relating to employer-employee relationship, Contracts, Itinerary, Limited Validity periods and non-speculative specialty occupation work for adjudicating H-1B petitions.
[1] Determining 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
[2] Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018