A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, June 25, 2020

H-1B Employer-Employee and Contract Requirements Relaxed

In a rather surprising move, USCIS has relaxed standards for adjudicating employer-employee relationships and contract and itinerary requirements for H-1B petitions. These changes mainly apply to consulting companies involving third-parties. 

In a policy memo dated June 17, 2020, USCIS rescinded two previous policy memos on employer-employee relationship and contracts and itineraries requirements. 

To prove the control aspect of the employer-employee relationship, petitioners only need to show one of the following: power to “hire, pay, fire, supervise, or otherwise control the work of” the employee. Under this new interpretation, simply hiring the employee is enough to meet this new standard.

As many companies that work through contracts know, is not uncommon for officers to issue a Request For Evidence (RFE) asking for third-party agreements to prove the employment's legitimacy. The same applies to evidence of day-to-day assignments. With this update, USCIS clarifies that such evidence is not required, but will be used if submitted.

Some approved H-1B petitions are valid for a shorter time than was requested. This can happen if an officer judges it to be necessary, such as when the LCA certification period is shorter than the requested H-1B period. This practice will continue, though now the officer must include an explanation for the shortened valid period in the decision.  However, the validity period of an H-1B approval would not be shortened simply because of a short client contract.

"Benching" is also brought up. One of the requirements in a valid H-1B petition contract is to work full-time. It is prohibited for an H-1B employee to be "benched", or told not to work for a while, even if he is paid. Doing so will result in revocation of H-1B and a finding that the employee did not maintain status.

Overall, the burden of proof for H-1B applicants has been reduced. It is uncertain whether this is an effort to adhere to some recent federal court decisions or a precursor to harsher regulations in the pipeline.  One thing is for sure - policy changes will keep on coming. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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