H-1B Visa – Employer / Employee relationship no longer enforcable by USCIS!!

 In Employment Based

On March 10, 2020, in the court case ITServe Alliance v. L. Francis Cissna, D.C. U.S. District Judge Rosemary M. Collyer invalidated USCIS memos regarding the employer / employee relationship:

CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.

CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.

The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.

The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.

CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable. In summary: The itinerary requirement is no longer enforceable.

CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.

Notes:

3rd Part Work Site:

As long as the Employer does ONE of the following: hire, pay, fire OR otherwise control the H-1B professional and then it will be considered a valid employer-employee relationship.

Itinerary Rule

CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable. In summary: The itinerary requirement is no longer enforceable.

Short USCIS Approvals

USCIS has the authority to grant H-1B visas for less than the requested three-year period BUT MUST provide its reasoning behind any denials, in whole or in part.

The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.

USCIS cannot approve H-1B petitions for a day or a week anymore because the judge found that they were based on the itinerary/specific work rule, and she invalidated those rules.

 

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