Memos Rescinded As Part of Court Settlement
As part of a court settlement in the ITServe Alliance case, the USCIS agreed
to rescind the two restrictive memos that impacted H-1B petitioners, especially
in cases involving Third Party Placements. These memos include:
- Employer-Employee Relationship for Adjudication of H-1B Petitions, Including
Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8
(AD 10-24), issued January 8, 2010 (the Neufeld Memo);
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party
Worksites, PM-602-0157, issued February 22, 2018.
The rescission of the memos means that the USCIS can no longer deny cases
based on a restrictive interpretation of what constitutes Employee-Employer
relationship or if the Petitioner does not provide End Client contracts
for the duration of the requested validity.
On the issue of the Employer Employee Relationship, the court stated that
per USCIS regulations “an employer-employee relationship with respect
to employees … (is) indicated by the fact that (the petitioner)
may hire, pay, fire, supervise, or otherwise control the work of any such
employee…” Consequently a petitioner is only expected to
meet one of these criteria. As a result, the USCIS in its latest guidance
Memo, PM-602-0114, issued on June 17, 2020 states that adjudicating officers
should establish whether the petitioner meets one of the “hire,
pay, fire, supervise, or otherwise control the work of” factors
with respect to the beneficiary. The Memo further states that a bona fide
job offer should exist at the time of the filing and that the petitioner
is expected to attest, under penalty of perjury, that the information
on the employment and that contained in the Labor Condition Application
(LCA) is truthful and accurate.
In withdrawing the Contracts and Itineraries Requirement Memo, the USCIS
has also agreed that it will no longer require End Client contracts for
the duration of requested validity. The courts ruled that as long as the
Employers / Petitioners paid the H-1B beneficiaries salaries as per the
LCA and met other regulatory requirements, they would continue to meet
the legal requirements for the visa benefit.
Also agreed, as part the of this settlement, are the following:
1. the USCIS will “re-open and adjudicate” individual agency
decisions on H-1B adjudications that were the subject of the ITServe Alliance
lawsuit against USCIS (i.e., primarily the cases of its members);
2. USCIS will not issue approvals for H-1B petitions with validity periods
shorter than the time period requested by the H-1B petitioner, unless
such decisions include or are accompanied by a brief explanation as to
why the validity period has been limited.
3. Additionally, Petitioners who have been subjected to past denials or
approvals of short duration are able to go to the Courts for re-dress
on this issue. With these rescissions in place, all cases subjected to
denials or approvals for short duration may be overturned through court
action. Unless the Petitioner belongs to the ITServe Alliance, they will
not have the adverse decisions automatically redressed.
This may be yet prove to be a pyrrhic victory for proponents of immigration.
This case may not be the last word on H-1B visa matters. The USCIS is
contemplating regulatory measures to severely curtail and restrict H-1B
visas, through a series of measures as yet fully unknown. These measures
will need to go through a rule-making process and have a comment period
before the enactment of regulatory actions.
While the Trump Administration is likely to announce a temporary ban on
the entry of those with non-immigrant visas, including H-1Bs, it seems
that those applying through the H-1B Cap or for renewals or amendments
in the next few months, will benefit from the rescission of these memos
for when the ban is lifted.
Please contact USILAW with any questions. You may reach us via email at