By the publication of a new policy memorandum on June 17, 2020 (the “new memo” or the “June 17, 2020 memo”), U.S. Citizenship and Immigration Services (USCIS) has rescinded two policy memos responsible for most of the increase in the denials of H-1B petitions.
The June 17, 2020 memo touches different requirements that were previously detailed in the two rescinded memos:
- Employer-employee relationship:
Based on the June 17, 2020 memo, an officer can establish that an employer-employee relationship exists if one of the following factors is met:
- supervise or
- otherwise, control the work.
An H-1B petitioner does not have to prove all these factors anymore. The memo states that the submission of the Labor Condition Application (LCA) with a written employment agreement or a summary of the terms of an oral agreement should suffice to establish an employer-employee relationship. This applies even when the H-1B petitioner is an IT staffing firm.
We still recommend that H-1B petitioners prove that more than one factor is met when applicable and possible to strengthen the H-1B petition. For example, where other documents such as the right to control statements, timesheets, performance reviews, etc. are available the H-1B petitioner can still submit these as long as the documents do not constitute material misrepresentation to the best of the H-1B petitioner’s knowledge.
The memo also emphasizes that the employment relationship must exist at the time of filing. Thus, if the H-1B petitioner establishes that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation, the H-1B petition may be approved without the issuance of an RFE.
- Contracts (agreements and work orders, Purchase orders or statements of Work)
While USCIS acknowledges through the new memo that the submission of contracts is not required by law, it still states that the submission of contracts will help an adjudicating officer in assessing whether there is an employer-employee relationship and whether the beneficiary is eligible for the benefit sought (this may include whether there is a job available for the beneficiary or whether the job is a specialty occupation). Here, it remains to be seen how USCIS adjudicators interpret their discretion to request contracts indicating future work. Thus, we recommend that contracts be submitted when available.
- Non-speculative Specialty occupation Work
Regarding specialty occupation Work, the memo states that a petitioner is not required by law to submit day-to-day assignments. However, it adds that day-to-day assignments will help the adjudicating officer in determining whether the job is a specialty occupation. Thus, documentation from the petitioner or other parties involved in a contractual job itinerary, detailing the duties of the H-1B worker should still be submitted when available.
- Benching rule
While Benching is allowed by the regulation, in the memo, USCIS states that an H-1B worker maintains his status by performing the work described in the H-1B petition. Benching should be only for a reasonable period of time (e.g. time required for a reasonable transition between assignments or leave under the Family and Medical leave Actor o the Americans with Disabilities Act). We are still to see how USCIS will apply the benching rule, which is, by Congress, an area of the Department of Labor. Normally, USCIS should not be able to deny a petition, even partially when the contracts show a shorter period than what is requested in the H-1B petition. Thus, this new memo adds that an adjudicating officer will not revoke a previous H-1B petition when an amended petition is filed because of a project ended unless the H-1B petitioner has a pattern or practice of failure to file an amended or new petition when required to do so.
USCIS will temporarily not require itineraries until further notice. We, nonetheless, still recommend that H-1B petitioners file their petitions with an itinerary to demonstrate that the beneficiary is otherwise eligible for the benefit sought.
- Limiting Validity Periods
An adjudicating officer will still be able to approve an H-1B petition for a period shorter than the one requested. However, the officer will have to explain why the petition is approved for a shorter period. That explanation will not find its basis in any of the requirements previously mentioned in the two rescinded memos.
The impact of the new USCIS memorandum published on June 17, 2020 will still depend on further USCIS actions. When possible, we recommend that H-1B petitioners keep the practice of submitting documentation that has in the past warranted approvals.
When the documentation is not available, a specific evaluation of the case should be done by an attorney.