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USCIS Rescinds Two Policy Memos Regarding H-1B Petitions and Issues New Guidance

In the wake of the ITServe victory, part of USCIS’ settlement with the plaintiffs in that case was that the agency agreed to rescind its “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo (commonly known as the third party placement memo) from 2018. That memo provided USCIS the justification to give a lot of grief to any H-1B petitioners who intended to place their beneficiaries at third-party or client sites, and it affected tech consulting companies in particular, making these types of H-1Bs very difficult to get approved. Among other things, USCIS would issue burdensome and onerous RFEs, asking companies to document every single project, contract, SOW, PO, etc. that the H-1B employee would be working on. Furthermore, ignoring the reality of how most companies conduct business, USCIS used the absence of such documents to unjustly deny H-1Bs or issue H-1Bs with significantly shortened duration periods (in one instance even issuing an H-1B approval valid for only a single day).

 

The new policy memo rescinds the previous third party placement memo, and clarifies what sort of factors officers may consider in adjudicating H-1B petitions, particularly in regards to employer-employee relationship and specialty occupation work. It remains to be seen what practical effect this new policy guidance will have, particularly in the context of consulting companies, but it appears to be a victory for H-1B petitioners everywhere.

 

The full policy memorandum can be found here.

 

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