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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.
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USCIS Policy Memorandum (PM-602-0157): Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party WorksiteEffective Date
February 22, 2018Subsequent Trump-Era 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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Current Status
Not in effectOriginal 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
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.
Go to article on forbes.com