Last Updated on February 23, 2023
USCIS settled a lawsuit with the business group ITService Alliance to overturn policies on H-1B visas
Earlier this week, USCIS settled a lawsuit with ITService Alliance to overturn policies on H-1B visas. This follows a District Court opinion on March 10, 2020, which ruled that key USCIS policies were unlawful, specifically those that restricted the understanding of the employer-employee relationship. This includes H-1B visa holders who work at a client site or third-party worksite location, and short-term approvals of H-1B petitions.
In the settlement, USCIS agreed that it will no longer require a high-scrutiny analysis of the employer-employee relationship in the petition. USCIS also cannot issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. If the approval is shorter than the requested period, USCIS must include a brief explanation as to why the validity period has been limited.
Who Does This Impact?
This will impact employers applying for H-1B petitions for employees in the following scenarios:
- Employees who work at a third-party worksite location;
- Employees who work at a customer’s location;
- Employees that are considered contractors, such as IT consultants; and
- Other employer-employee relationships
USCIS will no longer be able to issue approvals shorter than the time period requested by the H-1B petitioner, and employers will no longer need to submit itineraries to evidence the length of an assignment or employment. Petitioners will now only have to show an employer-employee relationship by evidencing one of the following: hire, pay, fire, or otherwise control the employment of the H-1B employee. This will make the petition process easier for companies sponsoring employees for this type of employment.
If you have had a case denied in the past for employer-employee relationship, GIA recommends that you contact your immigration counsel for assistance in assessing whether your case would now be successful under this new guidance.
What do I need to do next?
Envoy and GIA are monitoring USCIS announcements and will publish information about any updates. Clients directly affected by the recent decision will be notified by their Envoy Customer Relationship Manager. Should you have any questions regarding this update, please reach out via the Communication Center. Once premium processing becomes available, we will provide instructions on how to add.
Envoy is pleased to provide you this information, which was prepared in collaboration with Ryan Bay, who is Partner, Legal Operations at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.