ITServe has negotiated a settlement with USCIS to remove their 10-years of rulemaking policy memos that force consulting companies to prove the employer-employee relationships, provide a detailed itinerary of work and concrete client letters.
The deal is a big relief and a win for third party consulting companies and their H1B workers as the Neufeld memo from 2010 and the entire 2018 Contracts & Itinerary memo will no longer be applicable.
USCIS will remove their H1B pre-requisite criteria of submitting these as mandatory documents starting Aug 18, 2020:
- Client letters,
- Detail Work Itinerary for each end client work location, and
- Employee-Employer relationship documents
USCIS and IT serve agreed to this deal in lieu of stopping the court case No. 1:18-cv-02350-RMC in the United States District of Columbia (“ITServe Litigation”) started on October 11, 2018.
USCIS will not shorten approval periods of an H1B based on the availability of work or lack of client letters. We have seen that USCIS started approving H1Bs only for the term mentioned in the client contract. Many people got approval till past dates and some only for 1 day.
As per the agreement reached with USCIS, they will provide a written explanation in case they are giving shorter H1B approval.
In any case, client letters, master service agreements or consulting contracts, etc. will not be the sole reason to shorten the H1B term.
It is recommended to submit a client letter even though it is not required as per this new contract.
USCIS has not announced anything yet publicly. It is expected that they will announce it within the next 90 days.
Employer-employee relationship proofs are required for H1B extension even after this agreement.
In simple terms, you can prove employer-employee relationships just by showing that your employer has the right to hire, pay, or fire.
USCIS cannot deny your H1B now just because your H1B employer is not managing your day-to-day activities at client location.
USCIS will also not ask you to prove specific work assignments for the duration of the H1B at client site as they were made mandatory in the 2010 Neufled Memo.
Unfortunately, the existing short H1B approvals cannot be automatically extended. There has been no agreement on this point.
You will need to apply for an extension and this time, you should be able to get a full 3-year term.
The only exception is the H1B cases which were part of the litigation filed by IT serve. These cases will be re-opened and reprocessed within 90 days. If there is an RFE issued, USCIS will fast track them and give out results within 60 days of submitting the RFE response.
The agreement does not stop or force USCIS in issuing new policy memos. The settlement only targets the ‘short H1B approvals‘ and the proof of ‘employer-employee‘ relationship definition.
If the Trump government wants to stop or add tough criteria for the work-based visas, they can always find new ways like increasing the minimum H1B wage to 250k.
The agreement has a delay in processing time clause which does allow USCIS extra 60 days if they cannot process all applications that were part of this lawsuit within 90 days due to COVID-19 closures.
There has been no agreement reached with the US embassy in this deal. US embassy officer can still issue a form 221g and ask for all documents again before issuing your H1B visa.
US embassy can also deny your visa stamp based on client documents.
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