Update 18 June 2020: USCIS has removed the employer-employee and H1B itinerary policies officially on June 18 announcement.
What this good news means for H1B applications effective immediately from today:
- Full 3-year approval for H1B extension, transfer, or amendment irrespective of the client letter duration.
- No need to submit a client letter as a mandatory pre-requisite document.
- Fewer RFEs and faster H1B approval times.
- H1B itinerary is not required and will not be used to deny the application.
This policy change is the result of an out-of-court settlement with ITServe that USCIS signed in May 2020 to remove their 10-years of rule-making policy memos that force:
- Consulting companies to prove the employer-employee relationships,
- Provide a detailed itinerary of work and concrete client letters.
The deal was 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 has removed their H1B pre-requisite criteria of submitting these as mandatory documents now:
- Client letters (now Optional but recommended),
- SOW (now Optional but recommended),
- Detail Work Itinerary for each end client work location, and (not required now)
- Employee-Employer relationship documents – Now you only need to send only one of the documents that shows the employer can “hire, pay, fire, supervise, or control the work of employee’.
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.
This article will discuss:
Benching is Illegal
USCIS does not allow bench period legally even if you were paid your H1B salary.
If USCIS officer finds out that you did not work for the client as per approved H1B terms and conditions but were waiting to get a new client project, your H1B extension or amendment may be denied.
The officer may issue:
- Notice of Intent to Deny (NOID) for failure to maintain status or
- Notice of Intent to Revoke (NOIR)
The H1B bench period essentially means lack of work and it may be a material change that requires filing an H1B amendment to stay in the US.
Extended Training is Violation Too
The same rules will apply for extended period of ‘training’ while you are looking for a new client project.
USCIS says that you should file an H1B amendment if you were being paid and were getting trained for new project while waiting in the US.
Bench or Training Time Limit
There is no official maximum bench or training period time limit specified by USCIS. They have left it on the individual USCIS officer.
Our recommendation is to limit your bench or training period to 4 weeks. If you think it will take more than 4 weeks to get a new assignment, you should file an H1B amendment to about counting this time as ‘out of status’ time.
Now that USCIS has removed lot of rules, it is possible that they start implementing these ‘bench’ and ‘training’ period rules strictly. So, beware.
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 has already started approving H1Bs for a full 3 years even though the client letter was only for 6 months.
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.
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 the 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.
USCIS Policy Memo
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