US Citizenship and Immigration Services (USCIS) will rescind policies for H-1B visa workers placed at third-party worksites. The future acts follow a pair of court decisions that highlighted the agency’s narrow interpretation of federal regulations. In ITServe Alliance, Inc. v. Cissna, and another case, Serenity Info Tech et al. v. Kenneth T. Cuccinelli, decided earlier this year, plaintiffs’ argued that the agency’s interpretation of employer-employee relationship was too narrow.
Established law allows an employer to retain an H-1B worker during “nonproductive” periods as long as the company continues to pay the necessary wage to the worker. The holding in ITServe Alliance, Inc. v. Cissna went on to explain that there is no basis in the Immigration and Nationality Act or the agency’s own regulations for requiring a petitioner to submit evidence of specific, qualifying work requirements and location information on a daily basis during the visa period.
USCIS agreed to rescind its 2018 policy memo within 90 days of the May 20 decision as a settlement with the plaintiffs’ in Serenity Info Tech et al. v. Kenneth T. Cuccinelli. However, despite this action, employers with past denials related to the regulation at issue must go to court to overturn the previously denied petitions. Additionally, USCIS can issue new regulations related to H-1B visa eligibility.