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Original Date Announced
February 22, 2018USCIS guidance changes the definition of employer-employee relationship and requires itineraries and copies of contracts to cover anticipated activities of H-1B petition beneficiaries.
[ID #1046]
USCIS Policy Memorandum (PM-602-0157): Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party WorksiteEffective Date
February 22, 2018Subsequent Trump and Court Action(s)
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March 10, 2020
District Court Opinion: ITServe Alliance, Inc. v. Cissna
U.S. District Court rejects USCIS' approach to determining the presence of an employer-employee relationship in adjudicating H-1B petitions.
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May 16, 2020
Settlement Agreement: ITServe Alliance, Inc. v. United States Citizenship and Immigration Services
USCIS agrees to changes in criteria for determining the existence of an employer-employee relationship for purposes of H-1B petitions.
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June 17, 2020
USCIS Policy Memorandum (PM-602-0114): Rescission of Policy Memoranda
As a result of its settlement of a lawsuit by ITServe Alliance, USCIS rescinds prior guidance on employer-employee relationships and on contracts and requirements for third party worksites in the H-1B context. The new guidance includes instructions that the itinerary requirement of 8 CFR 214.2(h)(2)(i)(B) should be excluded from consideration by adjudicators in analyzing the employer-employee relationship and other factors related to eligibility. It also notes that an H-1B beneficiary should be considered to be controlled by an employer if the relationship meets any one of the “hire, pay, fire, supervise, or otherwise control" factors.
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Biden Administration Action: Proposed Revocation/Replacement/Modification
October 23, 20232023.10.23 Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers
On October 23, 2023, DHS issued a notice of proposed rulemaking revising H-1B requirements. The proposed changes would revise the definition of "United States employer" while retaining the “hire, pay, fire, supervise, or otherwise control" factors identified in the Trump administration's June 17, 2020 policy. DHS is proposing to completely remove the "employer-employee relationship" from the definition of "United States employer" because the current requirement has limited practical value since H-1B petitioners generally meet this under 8 CFR 214.2(h)(4)(ii). DHS would then codify the existing requirement that the petitioner have a bona fide job offer for the beneficiary to work within the United State. These revisions are in line with enforcement changes made in response to the May 16, 2020 settlement agreement.
View DocumentBiden Administration Action: Revoked/Replaced
December 18, 20242024.12.18 DHS Final Rule Modernizing H-1B
This Biden administration policy revokes the Trump-era policy identified in this entry.
On December 18, 2024, DHS announced its final rule on Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. The new rule removes the "employer-employee relationship" language from the definition of "United States employer" and codifies current DHS policy requiring that the petitioner have a bona fide job offer for the beneficiary to work in the U.S. as of the requested start date. The new rule also clarifies that if an H-1B worker is being contracted to work with a third party, the third party work must be in a specialty occupation. Finally, the new rule eliminates the itinerary requirement for all H classifications.
The final rule is effective January 17, 2025.
View DocumentCurrent Status
Not in effectMost Recent Action
December 18, 2024 Action: Revoked/Replaced 2024.12.18 DHS Final Rule Modernizing H-1BOctober 23, 2023Acted on by Biden Administration
December 18, 2024Acted on by Biden Administration
Original Trump Policy Status
Status: Final/Actual In Litigation ReplacedTrump Administration Action: Agency DirectiveSubject Matter: Non-Immigrant Visas: Employment-BasedAgencies Affected: USCISPre Trump-Era Policies
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January 8, 2010
Previous USCIS guidance on determining employer-employee relationships where an H-1B employee is to be placed at a third party site.
USCIS Guidance: Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements
Documents
Trump-Era Policy Documents
Biden Administration Policy Documents
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Commentary
USCIS-ITServe Settlement Overturns 10 Years Of H-1B Visa Policies
Forbes article explains the history behind the rescission and replacement of prior USCIS guidance on employer-employee relationship and contract and itinerary requirements with respect to H-1B petitions.
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