U.S. Citizenship and Immigration Services (USCIS) is rescinding certain policies for H-1B petitions. This includes two policy memorandum regarding H-1B beneficiaries assigned to job sites by third parties, including staffing firms. This instructs officers to stop applying previous policies that required staffing firms to provide detailed itineraries and job duties for H-1B candidates.
The new guidance contained in the policy memorandum and the rescinding of prior memorandum are effective immediately and apply to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
• Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ70/6.2.8 (AD 10-24), issued January 8, 2010;1 and
• Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued February 22, 2018.2
This memorandum provides guidance to USCIS officers in adjudicating the H-1B petitions. It is regarding establishing employer-employee relationship, requirement of chain of contracts or legal agreements between petitioner and third-party sites, requirement of day to day assignments, itinerary requirement and the right to limit to H-1B validity.
This memorandum suggests that the officer should apply the existing regulatory definition in assessing whether an employer and a beneficiary have an employer-employee relationship. The officer should consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. H-1B petitioners are required to submit a Labor Condition Application (LCA) and a copy of any written contracts between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist.
B) Establishing that employment exists at the time of filing
A bona fide job offer must exist at the time of filing. The petitioner has the burden of proof to establish that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation.
If the petitioner’s attestations and supporting documentation meet this standard, then the officer should not request additional evidence. If the officer finds that a petitioner has not established, by a preponderance of the evidence, statutory or regulatory eligibility for the classification as of the time of filing, the officer should articulate that basis in denying the H-1B petition.
A) Requesting the chain of contracts or legal agreements between the H-1B petitioner and third parties
A H-1B petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner and third parties. However, the petitioner must demonstrate eligibility for the benefit sought. In assessing whether an employer and a beneficiary have or will have an employer-employee relationship, the officer may consider any evidence provided by the petitioner, including chain of contracts or legal agreements between the petitioner and third parties.
A) Evidence of day-to-day assignments to establish the availability of specialty occupation work
The officer should review the position as described by the H-1B petitioner to determine if the petitioner has met its burden of proof to establish that the beneficiary will be employed in a specialty occupation. While evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation, the petitioner may choose to provide such evidence.
B) Denial of H-1B petition on the basis that employer has not specified the beneficiary’s day-to-day assignments in that role
An officer should deny a petition when the petitioner has not established that the beneficiary will work in a specialty occupation. While a petitioner is not required to identify and document the beneficiary’s specific day-to-day assignments, the petitioner must meet all statutory and regulatory requirements, excluding the itinerary requirement under 8 CFR 214.2(h)(2)(i)(B); binding court precedent; AAO adopted and precedent decisions; and current USCIS policy guidance concerning H-1B non-immigrant classification. If the officer finds that a petitioner has not established, by a preponderance of the evidence, statutory or regulatory eligibility for the classification, the officer should articulate that basis in denying the H-1B petition. The officer should not apply the rescinded guidance.
C) Denial of an H-1B extension or change of status request, or revoke approval of H-1B non-immigrant classification, if evidence in the record establishes that the beneficiary was benched or never worked but still was paid
Except in certain limited circumstances, “benching” is prohibited by law to prevent foreign workers from unfair treatment by their employers and to ensure that the job opportunities and wages of U.S. workers are being protected. The failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.
Guidance concerning benching remains unchanged. The officer may issue a Notice of Intent to Deny (NOID) for failure to maintain status or a Notice of Intent to Revoke (NOIR), as appropriate, if evidence in the record indicates that there has been a material change in the terms and conditions of employment that may affect eligibility.
Application of the itinerary requirement under 8 CFR 214.2(h)(2)(i)(B) or 8 CFR 214.2(h)(2)(i)(F)(1) by the officer
USCIS will abstain from the application of the itinerary requirement at 8 CFR 214.2(h)(2)(i) in the limited instance of applicable H-1B adjudications until the Department of Homeland Security or USCIS issues new adjudicative and/or regulatory guidance on this requirement. The officer also should not apply the rescinded guidance.
USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. However, the decision must be accompanied by a brief explanation as to why the validity period has been limited.
The policy change took place without the law being changed or USCIS issuing new regulations, leading to the lawsuits against the Trump administration.