May 20, 2020 has become the day of historical significance for many people around the world as the USCIS signed a path-breaking agreement with ITServe Alliance on this day. While the ongoing crisis of COVID-19 has led to a temporary ban on immigration and international travel, this news has arrived like a wave of fresh breeze.
Foreigners, who aspire to work in the United States of America by availing an H1-B visa once the world returns to normalcy, must have cherished this decision.
What does this Agreement mean?
A settlement agreement in nature, this agreement aims to make the H1-B processing simpler and faster, thereby fulfilling the dream of many H1-B visa aspirants, especially the ones who belong to the IT industry. However, visa aspirants are not the only ones who will get benefited. The employers, IT consulting companies, and staffing agencies in the USA will also be benefitted in a huge way.
As per the agreement, the USCIS agreed to nullify its policy memorandum entitled “Contracts and Itineraries Requirements for H1-B Petitions involving Third-Party Worksites” in its entirety within 90 days. Moreover, the USCIS will re-adjudicate H1-B petitions which were filed by the members of the ITServe Alliance and denied on the grounds of non-compliance with the regulations stated in the aforementioned policy memorandum and the “Neufeld” memorandum.
While re-adjudicating the H1-B petitions, the USCIS will not issue approve any petition for the validity period shorter as compared to the validity period requested by the petitioner. In case, the USCIS does so, an explanation behind the decision has to be given.
What was the aim of this Memorandum?
The policy memorandum entitled “Contracts and Itineraries Requirements for H1-B Petitions involving Third-Party Worksites” was published by the USCIS on February 22, 2018 with an aim to ensure the existence of a legitimate employer-employee relationship in cases where the employee is working at a third-party worksite.
As the name suggests, this memorandum affected only those prospective H1-B employees who intended to work at one or more third-party worksites (locations). Here, the third-party refers to the end-client. The possibility of the end client being different from the employer (petitioner) arises in arrangements wherein an IT consulting company or a staffing agency assists the end client in filling up a vacant position.
In such cases, the petition for the H1-B visa of an employee (beneficiary) is submitted by an IT consulting company or a staffing agency. This kind of arrangement is quite common in the IT industry in the USA as it’s very dynamic. Sometimes, primary vendors, implementing vendors, contractors, or brokers also become a part of this arrangement by acting as intermediaries between the petitioner and the end client.
Why did the need for this Memorandum arise?
The federal agency USCIS (U.S. Citizenship and Immigration Services), which is a component of the Department of Homeland Security (DHS) and oversees lawful immigration into the USA, recognizes the fact that work arrangements as specified in the above paragraph (wherein the petitioner/employer is different than the end client) are legitimate.
But, the USCIS believes that abusing the H1-B work visa program is relatively easy in cases that involve such work arrangements. According to the USCIS, certain kinds of violations take place during the time when an H1-B employee works and stays in the USA. These violations include but are not limited to making H1-B employees work in non-specialty occupation jobs and paying less than prescribed wages to H1-B wages.
So, the USCIS released this policy memorandum and introduced regulations that need to be followed by petitioners for proving that beneficiaries are employed on a non-speculative job. In other words, a petitioner has to prove that the occupation of a beneficiary is classified as one of the specialty occupations that are eligible for an H1-B visa.
What is covered in this Memorandum?
The policy memorandum specifying the regulations about how to fulfill the requirements related to contracts and itineraries in case of H1-B petitions that involve beneficiaries who will work on third-party or end-client relationships provided the following guidelines.
- Submitting evidence to establish non-speculative work
The employer (petitioner) needs to demonstrate that a “non-speculative qualifying assignment” exists for the beneficiary (prospective H1-B employee) and will continue to remain throughout the duration of the visa validity period. This non-speculative qualifying assignment can be shown by submitting evidence in the form of a signed contract, a work order, a letter signed by an authorized official of the end-client company, or any other valid document.
The document submitted as evidence should contain information about the type and the duration of work required to be performed by the beneficiary at a third-party location. Failure to submit the required evidence by the petitioner can lead to denial of the petition by the USCIS.
- Submitting a detailed itinerary with dates for each location
This guideline is applicable in the case of H1-B petitions wherein a beneficiary intends to work at more than third-party locations. The petitioner has to submit an itinerary that contains all the details about each of the locations at which the beneficiary will work during the visa validity period requested in the petition. Along with locations, dates of working at all the locations also need to be submitted.
In situations, wherein the petitioner is unable to submit the itinerary, the petition can be denied by the USCIS without even issuing a ‘request for evidence’ (RFE). An important point stated in the memo is that the itinerary can serve as an additional proof in case of H1-B petitions wherein the beneficiary will work at only one worksite.
- Submitting evidence for proving a valid visa status
Employers filing a petition for an H1-B visa extension on behalf of an employee who has been working at one or more third-party locations need to abide by this guideline. The petitioner should be able to prove that the concerned H1-B employee maintained his or her visa status during the entire duration of the visa validity period. Failure to do so can lead to approval of the petition for consular processing.
The evidence can be in the form of valid documents that demonstrate that an H1-B employee performed non-speculative job duties and received the prescribed wages at all times. This guideline also mandates a petitioner to file an amendment for an H1-B employee whose employment conditions have undergone any material change, for example, changing the third-party or the end-client.
Is this Memorandum one of its kind?
Well, the policy memorandum released by the USCIS on February 22, 2020 is not one of its kind. On January 8, 2010, the USCIS had published a similar memorandum entitled “Neufeld”. The word ‘similar’ refers to the impact as both the memoranda made getting the H1-B visa challenging for nationals of various countries.
The “Neufeld” memorandum states regulatory requirements that need to be followed by H1-B petitioners for establishing an employer-employee relationship. As a result of this memorandum being implemented, the USCIS denied a large number of H1-B visa petitions every year on the grounds of the absence of an employer-employee relationship between the petitioner and the beneficiary.
In the span of 10 years ranging from 2010 to 2020, thousands of H1-B visa petitions faced a denial due to this memorandum. This situation got worsened during the Trump administration as rules became to be stringent for H1-B employees and employers.
What led to this Path-breaking Agreement?
The agreement took place after a long-pending lawsuit filed against the USCIS by the ITServe Alliance came to an end on March 10, 2020. The court ruling in the lawsuit ITServe Alliance v. L. Francis Cissna [L. Francis Cissna is an Ex-Director of the USCIS] was made in the favor of the plaintiffs (i.e., the ITServe Alliance).
The lawsuit was filed to challenge the strict regulations stipulated by the USCIS for establishing a bona fide employer-employee relationship, demonstrating non-speculative work, and providing an itinerary of service dates and locations. Approval of several H1-B visa petitions for less than the requested validity period of 3 years by the USCIS also formed the basis of filing a lawsuit.
The court studied the words used in various policy memoranda that the USCIS has issued in the past few years. After careful examination, Judge Rosemary M. Collyer in the U.S. District Court for the District of Columbia gave the ruling that the USCIS regulations for showing the employer-employee relationship, non-speculative work, and detailed itinerary cannot be held valid as they were formed without conducting the formal notice-and-comment rulemaking process as required under the Administrative Procedure Act (APA).
Moreover, the court also passed a judgment that the USCIS has to give a proper justification for every H1-B petition that is approved for the shorter validity period as compared to the validity period requested by the employer. Thus, both the policy memoranda mentioned in this article were considered invalid by the court.
However, it’s important to mention here that the decision made by the U.S. District Court for the District of Columbia will affect only the plaintiffs (i.e., the ITServe Alliance). The memoranda and all other regulations formed by the USCIS will continue to be enforced while adjudicating H1-B petitions submitted by all other parties.
Have there been any other similar lawsuits?
Yes, a similar lawsuit was filed against the USCIS by the Serenity Info Tech Inc. and other parties. The lawsuit Serenity Info Tech Inc. et al v. Kenneth T. Cuccinelli [Kenneth T. Cuccinelli is the Acting Deputy Secretary of Homeland Security] came to end on May 20, 2020.
Judge Amy Totenberg observed the ruling made by Judge Rosemary M. Collyer and passed the judgment in the favor of the plaintiffs (i.e., Serenity Info Tech and other parties). As per the court ruling, petitioners need not submit the evidence of specific qualifying assignments and micro-location information for every single day of the visa period in regard to beneficiaries, as no such requirement is stated in the Immigration and Nationality Act (INA) or the USCIS regulations.
Just like the ruling made in the ITServe Alliance v. L. Francis Cissna lawsuit, the ruling made in this lawsuit too will affect only the plaintiffs. All the other employers who might file H1-B petitions in the future will remain unaffected by this decision.
What are the implications of this Agreement?
The agreement has paved the way for many prospective H1-B visa holders and employers to submit petitions without the fear of being given unnecessary denials or RFEs (Request for Evidence). The members of the ITServe Alliance and their prospective H1-B employees as well as clients have been put in a much favorable position due to this agreement.
While the court ruling in the ITServe Alliance v. L. Francis Cissna lawsuit benefitted only the plaintiffs, the agreement clause of withdrawing the “Contracts and Itineraries Requirements for H1-B Petitions involving Third-Party Worksites” will benefit many more H1-B employers and prospective H1-B employees in the future.
The major conclusion that can be drawn from the lawsuits and agreement discussed in this article is that the H1-B employers can resort to the court if they feel that the USCIS is making and implementing regulations that cannot be justified. On facing denials and RFEs for H1-B visa petitions without any sound reason, employers can take legal aid without any fear or worry.