Over 2 months ago I wrote an article stating that a Federal Judge had ruled that USCIS could no longer rely on its 2018 Contracts and Itineraries memo.
Here is the link to the original article: https://www.patellegal.com/federal-judge-rules-that-uscis-can-no-longer-use-its-policy-memos-to-justify-denying-h-1b-petitions/
In this article I explained that despite the decision it didn’t necessarily mean USCIS would abide by it. And they didn’t. Despite the ruling in ITServe Alliance, Inc. v L. Francis Cissna, on March 10, 2020, USCIS continued to deny cases or shorten the validity dates where Employers could not show evidence of work for 3 years. However, this is all about to change.
USCIS has agreed to a settlement with ITServe Alliance following a Judge’s opinion in Georgia. On May 20, 2020, in the U.S. District Court for the Northern District of Georgia, in Serenity Info Tech et al. v. Kenneth T. Cuccinelli, Judge Amy Totenberg came to the same conclusion as Judge Collyer, in that USCIS could not require Employers to submit evidence of available work for 3 years.
The key points of the settlement are as follows:
- USCIS must rescind its 2018 Contracts and Itineraries memo in its entirety in the next 90 days;
- USCIS agreed to re-open and re-adjudicate the H-1B petitions that were the subject of the ITServe Alliance lawsuit;
- USCIS will not apply its interpretation of the Employer/Employee relationship, requiring “actual control,” and has agreed to comply with Judge Collyer’s decision from March 2020; and
- Finally, USCIS has agreed not to issued short approvals unless accompanied by a written decision explaining why the officer decided to truncate the validity period. The reason for a short approval cannot be because an Employer does not have evidence of specific work for 3 years.
This decision is fantastic news for IT staffing firms who will no longer have to provide evidence of projects for 3 years or demonstrate exactly how they are supervising/controlling the beneficiary at the end-client location. Employers should also start seeing approvals for 3 years in the majority of cases.
However, petitions previously denied based on USCIS’s unlawful policy memos will not automatically get their cases re-opened. Employers who have received a denial or a short approval will still need to file a lawsuit in order to get their cases re-opened.
If you have received a denial or a short approval and would like to consider filing a federal lawsuit please contact our Senior Immigration Attorney Chris Prescott at firstname.lastname@example.org