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H-1B Visa: Restrictions on Holders & Their Employers Rejected in Court

Temporary workers in the U.S. using H-1B visas can breathe a sigh of relief. And so can their employers.

On March 10, 2020, in the case of ITServe Alliance v. L. Francis Cissna, the judge ruled that the policies under the 2018 Contract and Itinerary Memorandum Act of the U.S. Citizenship and Immigration Services (USCIS) were unlawful and had to be rescinded in their entirety within 90 days of the ruling. This decision officially took place in a policy memorandum from USCIS issued on June 17, 2020.

Later, on May 20, 2020, in the case of Serenity Info Tech et al. v. Kenneth T. Cuccinelli, after examining evidence from the Immigration & Nationality Act (INA) as well, the judge ruled that Cuccinelli, as acting director of the USCIS, had no basis to enforce the 2018 Contract and Itinerary Act on employers of H-1B workers.

The Flawed Regulation

From February 2018 until March 2020, for H-1B petitions involving third-party work sites — when the visa-holder would work not on the employer’s work site, but on a client/contractor’s work site — their employers would be required to provide the USCIS with detailed itineraries and micro-location information for the entire visa period.

This was highly problematic for U.S. firms hiring foreign H-1B workers.

Jonathan Wasden, law partner for the plaintiff ITServe Alliance, told Forbes Magazine, “This should make life a lot easier for employers. The contracts and itineraries memo, for example, created impossible burdens for an employer to satisfy. USCIS wanted companies to prove what an H-1B employee would be doing every day for the next three years. That was done away with in this settlement.”

ITServe Alliance is an association of Information Technology Solutions & Services organizations in the U.S., representing over 1,100 member companies. It looks after the objectives of all these companies, of which one of them is to secure the best overseas talent.

Ever since the beginning of the Trump administration in 2016, H-1B policies in the U.S. have become stricter due to the protectionist philosophies of the ruling party. The National Foundation for American Policy claimed that a key goal of the Trump administration has been “to make it more difficult for well-educated foreign nationals to work in America in science and engineering fields.”

They released a report last year showing that rejections and denials of H-1B visas seem to have increased, which doesn’t bode well for the acquisition of foreign talent within U.S. borders. Technical and technological experts from overseas are now increasingly wary of risking their money and time in the United States.

Other Flawed Regulations & Policies

The rulings also did away with other aspects of the USCIS’s interpretation of federal regulations and policies that some consider to be flawed. The USCIS’s interpretation of the employer-employee relationship and its short-term approvals of H-1B petitions were found to be erroneous with respect to surrounding legal structures. In June 2020, USCIS also rescinded a policy from 2010 that excluded contractors from the legal definition of “employer”. In the same policy memorandum as above, dated June 17, 2020, the USCIS provided guidance on how officers can determine whether an employer-employee relationship exists if only one of the “hire, pay, fire, supervise, or otherwise control the work of” factors are met.

Employee-Employer Relationship

The USCIS used to reject H-1B petitions under their reductionist interpretation that a contractor, whom some H-1B holders worked under, did not meet the definition of an employer—and, as such, the holders weren’t allowed to work under those conditions. However, the U.S. Department of Labor’s definition of an employer contradicted the USCIS’s interpretation, and the judge ruled as such.

Short-Term Approvals

The USCIS also used to approve H-1B petitions with validity periods shorter than the time period requested by the petitioner, often ones that only lasted a single day. This happened due to the flux in contractors and work projects in one holder’s visa period (a period that can be as long as 6 years). The judge ruled that unless a viable explanation accompanied such a decision on the shortening of a validity period, it would be invalid.

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