After litigation, U.S. Citizenship and Immigration Services (USCIS) recently entered into a settlement agreement in ITServe Alliance, Inc., v. USCIS that requires the agency to reopen and readjudicate several hundred H-1B denials and rescind a related February 2018 policy memorandum. The agreement further stipulates that:
- USCIS will not apply the interpretation of the current regulatory language in 8 C.F.R. § 214.2(h)(4)(ii), defining “United States employer” as requiring an analysis of the employer-employee relationship under common law, and USCIS agrees to comply with Judge Collyer’s March 10, 2020, decision in ITServe Alliance, Inc. v. Cissna, Civil No. 18-2350 (D.D.C.).
- USCIS will not issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner, unless such decisions include or are accompanied by a brief explanation as to why the validity period has been limited and in compliance with the decision in ITServe Alliance, Inc. v. Cissna.
Among other things, USCIS’s February 2018 memorandum introduced a practice of granting visa petitions for less than three years, which the court in ITServe Alliance, Inc., v. Cissna said represented a change after “decades of past practice on which petitioning U.S. employers have come to rely—and which, presumably, remains the practice for employers in other industries.” The court said that in these circumstances, USCIS must provide a legitimate reason for any decision to deny, in whole or in part, each petition for an H-1B visa. The agency must set forth its reasons for a decision; an agency’s failure to do so “constitutes arbitrary and capricious agency action,” the court said.
In the same case, the court said USCIS had misread the law on specialty occupations in support of its “itinerary” requirement that employers petitioning for H-1B employment at third-party worksites provide extensive details, such as dates and locations of all potential work assignments, over the entire period of future employment. The court concluded that as applied to the plaintiffs in the IT consulting sector, it was “irrational, that is, arbitrary and capricious,” to require contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years. The court said this was, in fact, a “total contradiction” of the plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. “Nothing more clearly illustrates the legislative nature of the [USCIS] interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action,” the court noted.
The new settlement agreement represents yet another step forward on the litigation front with respect to challenging H-1B denials.
- Settlement agreement, https://bit.ly/30Efdhh
- ITServe Alliance, Inc., v. Cissna, https://nfap.com/wp-content/uploads/2020/03/ITServe-Order-DDC.pdf
- USCIS February 2018 memo to be rescinded, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” https://bit.ly/3cY3fl1
- National Law Review, “Recent USCIS Settlement Offers Substantial Relief to H-1B Employers,” https://www.natlawreview.com/article/recent-uscis-settlement-offers-substantial-relief-to-h-1b-employers
Contact your WR attorney for advice in specific situations.