USCIS Issues New Policy Guidance to Rescind Longstanding Memos for H-1B Visa Petitions
June 23, 2020|
By: Brittany Simmons, Angelita Chavez, and Gladys Gervacio
On June 17, 2020, US Citizenship and Immigration Services (USCIS) rescinded two long-standing policy memoranda for adjudicating certain H-1B petitions and issued new policy guidance. The policy guidance is effective immediately and applies to all H-1B petitions, including pending petitions, appeals, and denials.
New Policy Guidance
- The employer-employee relationship can be established by meeting only one of the “hire, pay, fire, supervise, or otherwise control the work of” factor under 8 CFR 214.2(h)(4)(ii).
- A bona-fide job offer for a specialty occupation position must exist at the time of the H-1B petition filing.
- Contracts and legal agreements between the petitioner and third parties are suggested but not required evidence. The contracts and agreements do however help establish the employer-employee relationship and availability of work.
- Evidence of day-to-day assignments are not required but may help establish that the position offered is in a specialty occupation. The USCIS may deny a H-1B petition if the petitioner has not established that the position is in a specialty occupation.
- Benching of H-1B workers remains prohibited by law. The USCIS may issue a Notice of Intent to Deny (NOID) or a Notice of Intent to Revoke (NOIR) for failure to maintain the beneficiary’s H-1B nonimmigrant status. Even if the H-1B beneficiary is paid while in a non-productive status (benched), this may count as a material change and thus can still affect their status.
- USCIS can use their discretion to deny Change of Status or Extension of Stay requests for subsequent H-1B filings after benching, but may approve the new employment or amended H-1B employment for Consular processing.
- USCIS may issue H-1B approvals for a shorter time period than the requested H-1B validity period and must provide an explanation as to why the validity period has been shortened.
For help applying for H-1B petitions, please contact your Chugh, LLP immigration attorney. Contact us at email@example.com for an immigration consultation.
- Corporate Law
- Family Law
- Class Action
- Corporate Formation And Formalities
- Mergers And Acquisition
- Joint Ventures
- Employment Law
- Real Estate
- Intellectual Property
- Doing Business In India
- Estate Planning
- Premarital, Marital And Cohabitation Agreements
- Divorce And Legal Separation
- Spousal Support / Alimony
- Child Custody, Visitation And Parenting Time
- Child Support
- Government Contract
- Corporate Immigration
- Employment Based Permanent Residence (green Card)
- H-1b Visas For Temporary Workers
- Intracompany Transferee Visa (l-1a/l1b)
- Tn Visas
- Labor Certification And National Interest Waiver
- I-9 Compliance
- O-1 Visa (individuals Of Extraordinary Ability)
- H-2 Visas
- B-1 Visa
- Family-based Immigration
- Permanent Residence
- K Visas
- International Adoption
- Us Citizenship & Naturalization
- Eb-5 Green Card
- Treaty Trader Visa E-1
- Treaty Investor Visa E-2
- Students And Work Authorization
- F-1 Student Visa
- Removal Defense
- Victims Of Crime
- U Visas
- T Visas
- Other Immigration Categories
- Landlord & Tenant
- Personal Injury
- Tax Law
- Overseas Education Consultancy