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Settlement Agreement Between USCIS, IT Workers Poised to Ease H-1B Restrictions

May 28, 2020

USCIS has signed a settlement agreement with the plaintiffs in ITServe Alliance v. L. Francis Cissna in which the agency has agreed  to stop enforcing the restrictive policy memorandums concerning employer-employee relationships and third-party contracts and itineraries in H-1B petitions.  The settlement follows a pair of recent federal court decisions finding the policies unlawful because the agency issued them without going through the required ‘notice and comment’ rulemaking process.

As reported by Stuart Anderson, in January 2010 the problems for employers first arose when USCIS issued what is known as the “Neufeld” memo. That memo asserted the authority to deny H-1B petitions based on a potentially restrictive understanding of what constituted an “employer-employee” relationship, particularly when an H-1B visa holder performed work at a customer’s location.  Then, in 2018, USCIS issued the “Contract and Itinerary Memorandum,” requiring a specific itinerary of future work engagements and proof that “non-speculative” work was available for the H-1B worker for the entire duration requested in the H-1B petition.  However, the judge in ITServe Alliance ruled that both policies are inconsistent with the existing regulations governing these issues and, thus, were required to be published through ‘notice and comment’ rulemaking.

Settlement

There are four other important elements to the settlement.

1. USCIS is required to rescind “within 90 days” the 2018 Contract and Itinerary Memorandum.
2. USCIS agrees to “re-open and adjudicate” the individual agency decisions on H-1B adjudications that were the subject of the ITServe Alliance lawsuit against USCIS.
3. USCIS agrees that it will not apply the 2010 or 2018 memos in any future H-1B adjudications.
4. USCIS will no longer issue approvals for H-1B petitions with validity periods shorter than the time period requested by the petitioner based on a third-party contract, unless such decisions include an explanation as to why the validity period has been limited.

If you or your employer have any questions about how this recent settlement could impact your own H-1B status, feel free to contact us to schedule a consultation with one of our attorneys.