On June 17, 2020, US Citizenship and Immigration Services (USCIS) rescinded two long-standing policy memoranda for adjudicating certain H-1B petitions and issued new policy guidance.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.