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How USCIS Is Pushing Back After The ITServe Case Changed H-1B Processing

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  • How USCIS Is Pushing Back After The ITServe Case Changed H-1B Processing

In March 2020, H-1B processing changed significantly with the federal court decision of ITServe Alliance v. USCIS that negated numerous policies the agency was employing in denying H-1B cases.

District Court overturned USCIS denials based on a policy that more than one of the four specialty occupation criteria were required, “USCIS tried to justify its interpretation by reading the 'or' in the regulation as if it were “and.”

USCIS required contracts, itineraries, and third-party letters indicating exacting duties
for beneficiaries to the entirety of a requested term. The court ruled that an employer may retain an H-1B employee during “nonproductive” periods as long as the company pays the
required wage to the H-1B visa holder.

USCIS policy questioned the employer-employee relationship between the company that filed the petition and its beneficiary if the beneficiary performed duties for the petitioner at its client sites.

These common arraignments are called third-party site cases. The petitioning
company recruits, trains, and oversees its employees who perform duties on a project operated by another company. Many instances have general contractors who recruit subcontractors to fill out roles.

Petitioning companies fill the positions with one or numerous employees. USCIS restrictive analysis resulted in a change from an approximate 88% approval rate in 2016 to 59% in 2017 and remained at this level until the case resolved the matter.

ITServe Alliance, the largest tech company association with 1,400 members nationally, settled the case with USCIS resulting in the removal of two USCIS policy documents, the Neufeld Memo of 2010 and the Contracts and Itineraries Memo of 2017.

A new memo with new criteria was developed, which adopted the decision of ITServe Alliance to some degree. The June 2020 Memo has the following requirements:

  1. Meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of     factors with respect to the beneficiary.
  2. Job must exist at the time of filing.
  3. No requirement of 3rd party contracts or chain of contracts.
  4. No requirement for an itinerary of day-to-day assignments.
  5. No benching but cites ITServe Alliance for acceptability of periods of non-employment.
  6. Limitation of visa term is permissible by USCIS; ITServe restricts this practice.
    While H-1B petitions have seen a significant rise in approvals climbing to a historic 97%.

One crucial factor is the change in policy between the approaches to immigration by Presidents Biden and Trump. The Biden Administration publicly effuses its support of immigration strategies and approach to accomplishing more immigration visas and processes.

But this has not made everything easy, with no need to worry about how a case is presented. Anecdotally we have seen a significant uptick in site visits which appear to be used to obtain answers about the third-party and employer-employee relationships previously raised in an RFE using the strategies in the following memorandum.

The result is far more concerning as instead of mere denial. The focus will be on whether fraud was committed, which could result in deportation or criminal convictions of owners and other employees. Some of it may be unintended, and all can be avoided.

The starting point is how you analyze your company, its services, its positions, its processes, its marketing materials and website, its business model, its relationships, and all the documents related to each of these situations and how they impact H-1B and other visa filings.

A significant issue to focus on is whether the job exists at the time of filing. Understanding what that means and articulating and proving it is the key. First with a registration period and a 90-day period to file. The time of filing could be as late as June 30 if selected in the first round or later if the H-1B is picked up in secondary or tertiary selections to the lottery.

Another key is proving the work exists. With no need to provide contracts, itineraries, or third-party letters give us more creative solutions to indicating the position. A project plan is an excellent way to do this.

Instead of dealing with elements of your company, this plan is dedicated to how you provide your services, to whom, and with what resources. Use your history, your current situation, and your projected clients. It has the added feature of helping you analyze and predict the health and growth of your company.