H-1B Policy Memo Officially & Immediately Rescinds Policies That Targeted IT Consulting Companies
As discussed in our May 25th article, Overturned: USCIS Policy Impacting H-1Bs for Consultants, USCIS agreed to end its policy of requiring employers of IT consultants to submit client contracts and itineraries to prove the existence of valid employer-employee relationship between the H-1B petitioner and beneficiary.
Although USCIS was given 90-days to implement the terms of the May 20th settlement, it issued a new Policy Memo on June 17th. Below are the key points clarified by the new memo:
- Valid employer-employee relationship exists if the petitioner has authority to “hire, pay, fire, supervise or otherwise control the work” of the H-1B beneficiary.
- Authority to “hire, pay, fire, supervise or otherwise control the work” can be satisfied by a copy of a written employment contract between the H-1B petitioner and the beneficiary (or a summary of the oral agreement if a written contract does not exist).
- H-1B petitioners are no longer required to submit client contracts or other client documents (e.g., MSAs, SOWs and client letters).
- For H-1B beneficiaries working at more than one location, an itinerary (detailing dates and locations of the services) is no longer required.
- USCIS may no longer limit (shorten) the validity period of H-1B approvals to match the duration of client projects.
- This new policy is effective immediately and apply to currently pending H-1B petitions.
Interestingly, the Policy Memo goes off on a tangent toward the end by indicating that non-productive status for H-1B employees, even if they are still being paid, may be considered a material change in the terms and conditions of employment, which may be a basis for H-1B revocation. The memo does clarify non-productive period that is not subject to payment under the employer’s benefit plan or is allowed under other statutes (e.g., FMLA or ADA) would not be a violation of H-1B status.