Big Win for IT Consulting Companies as Judge Takes USCIS to Task in H-1B Court Case
A game-changing decision regarding H-1B visas and their adjudication by the U.S. Citizenship and Immigration Services (USCIS) was issued in U.S. District Court for the District of Columbia on March 10, 2020. The decision, ITServe Alliance v. L. Francis Cissna, was a consolidated case consisting of over 30 IT consulting companies who had all filed federal complaints regarding what they perceived as unfair targeting and treatment of their H-1B employees by the USCIS. In a sharp rebuke to the USCIS, Judge Rosemary Collyer agreed with the companies and ordered that the USCIS cease using several policy memos that had caused RFE and denial rates for IT companies to surge.
The decision removes two hurdles that IT companies have struggled with during the Trump Administration: (1) a narrow USCIS definition of the term "employer" and (2) strict requirements imposed by USCIS for itineraries showing available work for the entirely of the requested H-1B period.
The first issue stems from the USCIS interpretation of the Dept. of Labor (DOL) term "employer." The specific line of this definition seized on by the USCIS was that to be an employer, a company must have "an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The court held that the USCIS was improperly treating the "or" in that definition as an "and." This resulted in a high burden for companies to show day-to-day control over its employees especially when placed at client offices. With this decision, companies are only required to show one of those criteria rather than all of them. This could mean that something as simple as an employment contract will now suffice where previously the USCIS insisted on client contracts, statements of work, purchase orders, and even letters from the client disavowing any employer relationship with the H-1B candidate.
The second issue arose from the USCIS' application of an "itinerary" rule (8 C.F.R. Sec. 214.2(h)(2(i)(B)) which they used as a cudgel against consulting companies. Using this regulation and a February 2018 USCIS policy memo, companies were often required to provide mountains of evidence to show available client work or face a denial or shortened validity period. Judge Collyer remarked in her opinion that based on the USCIS criteria, "very few, if any, U.S. employer would be able to identify and prove daily assignments for the future three years for professionals in specialty occupations." Her order goes on to invalidate the USCIS policy and reliance on the itinerary rule.
It remains to be seen how slim the documentation companies provide can be while still garnering an approval from the USCIS but this should significantly lighten the evidentiary burden for IT consulting companies. Further, because the case was decided in the D.C. District Court, companies from around the U.S. are able to file complaints in that jurisdiction should they receive adverse decisions based on the above criteria. While there is still work to be done to even the playing field for IT consulting companies seeking H-1B visas, this is a step in the right direction.