After receiving several H-1B approvals for periods shorter than requested, IT consulting services company Flexera Global has sued USCIS in the federal court for the Southern District of Texas requesting an order directing USCIS to approve H-1B petitions for the periods requested.

The Trump Administration has made it harder to onboard workers requiring an H-1B visa. RFE and denial rates for H-1B petitions have skyrocketed, and delays in processing are expected. The Administration has particularly targeted H-1B petitions from IT staffing and consulting firms. First, it has questioned whether computer programmers were working in “specialty occupations.” Then, it has demanded that these same companies prove they will be in a bona fide employer-employee relationship with the visa beneficiary, and work is available for the beneficiary throughout the H-1B period. This required documentation includes items such as detailed itineraries and letters from “end-users.”

Staffing companies have seen a 34% to 80% denial rate, and they have been receiving approvals that might as well be denials. Seeking three-year visas, some approvals are valid for very short periods of time – weeks or months. In addition, given the processing delays, some companies are receiving approvals that are valid retroactively for a period that has already elapsed before the approval arrives. Companies often must reapply almost immediately, producing an unending cycle of filings and associated costs. Filing fees for some heavy users of H-1Bs already include a $4,000 surcharge, and USCIS has proposed additional fee increases for 2020.

Several suits have been filed arguing that USCIS violates the Administrative Procedure Act (APA) by reducing H-1B validity periods. In Flexera’s suit, USCIS has filed a Motion to Dismiss arguing that, as a matter of law, the Agency has the right and ability to grant short-term approvals – with or without explanation. The court ruling could go either way and could be favorable to H-1B petitioners.

Jackson Lewis attorneys will provide updates on this issue. IT staffing and consulting firms should continue to monitor developments.

Volume “impact litigation” in the U.S. District Court for the District of Columbia may lead to details of the basis of alleged, unannounced, new USCIS policies regarding the H-1B visa program.

Attorneys are alleging that USCIS is using new policies to adjudicate H-1B petitions, without properly completing the required notice-and-comment procedures for administrative rule changes and without basis for any regulatory change. The lawsuits, through the pretrial discovery process, seek to uncover the purported policy changes or directives by which USCIS is operating.

“Impact litigation,” also known as strategic litigation, is used to effectuate change when an issue affects more than one individual. Using this strategy, ITServe Alliance, a nonprofit trade association for IT services, staffing, and consulting organizations, is challenging new USCIS policies on their substance, as well as on the manner in which they were promulgated. These policies require employers who want to hire H-1B workers to work at third-party worksites to deliver documentation proving a bona fide employer-employee relationship, as well as itineraries demonstrating definite assignments during the full period of the H-1B petition.

The H-1B RFE and denial is at an all-time high, but it is particularly high (34% – 80%) for consulting firms that place workers at third-party sites. ITServe Alliance’s lawsuit alleges that USCIS’ new policies are an “overreach.” Judge Rosemary M. Collyer, who is presiding over this and similar cases, suggested that the Administration simply does not want these workers in the country.

When individual companies file cases in federal courts challenging denials, USCIS often settles the case and rescinds the denial. While that is a good individual result, it does nothing regarding the underlying policies and future adjudications. That is where impact litigation comes in. Approximately 60 cases have been filed in the U.S. District Court for the District of Columbia challenging USCIS’ actions regarding H-1B petitions for consulting or staffing companies. The cases have all been consolidated as ITServe Alliance v. USCIS. Unlike class action cases, which often are quite prolonged, volume impact litigation does not require the group to establish that they are a proper “class” – something that would have been very difficult since each H-1B case is different.

It has been reported that Judge Collyer is contemplating ordering discovery to determine whether USCIS is treating consulting and staffing companies differently. This was an unexpected, but welcomed, development for ITServe Alliance and others interested in learning more about the inner workings of USCIS.

Jackson Lewis will continue to follow this case and provide updates as they become available.

The U.S. Department of Labor (DOL) has released proposed changes to ETA Form-9035, Labor Condition Application for Nonimmigrant Workers (LCA), that would require more details about the end-user clients and potential worksites specific to the placement of H-1B workers.

Current practice requires employers to list the addresses for all intended worksites. The proposed change would require U.S. employers to provide the legal business name of the end-user client at whose worksite the H-1B intends to work. This new requirement directly targets U.S. employers who place foreign national workers at third-party worksites. The proposal further increases employers’ reporting requirements by asking for identification of not only known worksites but those at which there is a “reasonable expectation” of placement.

As part of the explanation for this change, DOL stated, “[E]mployers must identify those worksites at which the employer knows or reasonably expects to place H-1B workers based on existing contracts, business plans, or its own expertise.” DOL asserts that these changes are being “made to improve transparency about the number of H-1B workers being sent to worksites . . . and the entities with which the workers will be placed.”

The LCA would allow additional pages for up to 10 worksites. DOL estimates the time needed to complete the LCA will increase more than threefold, given that considerable additional employment (and estimated employment) information would be required.

This is not the first change to the H-1B program this year. U.S. Citizenship and Immigration Services (USCIS) had updated its policies to make it more difficult to place foreign students at third-party worksites during their STEM Option Practical Training (OPT). Further, in April, USCIS issued a policy memorandum requiring employers to provide detailed itineraries for the entire duration of H-1B petitions involving off-site employment.

The proposed regulation creates additional burdens for U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites. There are also a number of concerns regarding the proposed rule’s language. For example, DOL uses the term “secondary employer” to describe the end-user clients. This could imply the existence of an employer-employee relationship, which may or may not exist.

If you have questions about the proposed rule, please reach out to your Jackson Lewis attorney.

USCIS has exceeded its authority in issuing additional requirements on H-1B petitions involving third-party worksites, a suit filed in New Jersey seeking a temporary restraining order alleges.

Just before the 2019 H-1B filing deadline, USCIS issued a memorandum clarifying that petitioners who send employees to third-party worksites must provide significantly more evidence to show that a bona fide employment relationship exists between the employee and the H-1B petitioner. Among other things, this evidence may need to include: documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the entire duration of the H-1B term of employment.

The new memo is aligned with President Donald Trump’s Buy American, Hire American Executive Order and is aimed at protecting U.S. workers. The Administration believes that abuses of the H-1B program, such as not paying the required wage or having workers do “non-specialty occupation” work that harm the U.S. workforce, are more likely to occur at third-party worksite.

The new requirements clearly place additional burdens on any H-1B employers who subcontract high-skilled employees.

Several small technology staffing companies along with a trade organization, the Small and Medium Enterprise Consortium, seeing this a threat to their business models, filed suit in New Jersey federal court seeking a temporary restraining order (TRO) to stop USCIS from enforcing the new memo.

The plaintiffs argue that the new policies go beyond the statutory authority granted to USCIS and that the memo, therefore, violates the Administrative Procedures Act (APA). The plaintiffs have suggested that rather than focusing on who is “bona fide employee,” USCIS should focus on who is an “employer” under the H-1B program. The plaintiffs also have argued that as a matter of public policy, the H-1B visa program was originally designed to ease the critical shortage of technology workers in the United States.

In support of the TRO, the plaintiffs state that the requirements in the policy memorandum will in many cases not be possible to meet, and that the denial of H-1B petitions on this basis will ultimately result in plaintiffs suffering “irreparable harm to [their] reputation and [their] ability to compete” as U.S. jobs will be sent offshore to providers abroad. USCIS has declined comment on the lawsuit.

These accusations may not be speculative. There have been reports of denials of H-1B extensions on the basis of the new policy memorandum. We will continue to monitor and report developments. Please contact a Jackson Lewis attorney with any questions.

Further to President Donald Trump’s Buy American and Hire American executive order, which directs the DHS to protect the interests of U.S. workers and make sure that there is no fraud, abuse, or circumvention of the laws, USCIS has issued a new policy memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”

The guidance clarifies its position on employees who are employed at “third-party” worksites. Previous guidance on this topic had been misinterpreted and misapplied, USCIS said, and the guidance supersedes and/or supplements earlier guidance.

USCIS recognizes that as vendors and subcontractors become involved in the employment relationship, it becomes “more difficult to assess” the bona fides of the case. Therefore, to maintain the integrity of the program, USCIS requires petitioners to show, by a preponderance of evidence, that beneficiaries who will work at third-party locations will be employed in a specialty occupation throughout the requested period and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the period.

To do this, more evidence will be required than before. In addition, that evidence must be specific and corroborated, including:

  • Evidence of actual work assignments (i.e., technical documentation, cost-benefit analyses, brochures, and funding documents);
  • Copies of contractual agreements between all parties involved in the assignment;
  • Itineraries with the specific dates and locations of the services to be provided, along with location contact information; and
  • Copies of detailed statements of work signed by the end-user client detailing the specialized duties, the qualifications, the duration of the assignment, and the hours to be worked, and a detailed description of who will supervise the beneficiary.

The more attenuated the relationship between the petitioner and the end-user client, the more important it is for the petitioner to trace how it will maintain the employer-employee relationship.

When it comes to extensions, the guidance makes clear that there will be no deference to prior adjudications. When filing an extension, the petitioner will have to provide evidence that the above requirements were met for the “entire prior approval period,” as well as for the upcoming period.

Gathering the necessary information for a third-party location H-1B petition can be challenging, especially because the petitioner may have to obtain specific documentation from the end-user client. If you have any questions about how to proceed with such a petition, please reach out to your Jackson Lewis attorney.

No personal electronic devices (PEDs) larger than a cellphone or smartphone, such as a laptop computer or e-reader, can be carried into the cabin of airplanes flying directly to the U.S. from 10 airports in the Middle East, North Africa, and Turkey, the DHS and TSA announced on March 21, 2017.

Following are the airports:

  • Abu Dhabi International Airport, Abu Dhabi
  • Dubai International Airport, Dubai
  • Cairo International Airport, Egypt
  • Queen Alia International Airport, Jordan
  • Kuwait International Airport, Kuwait
  • Mohammed V Airport, Casablanca, Morocco
  • Hamad International Airport, Qatar
  • King Abdul-Aziz International Airport, Jeddah, Saudi Arabia
  • King Khalid International Airport, Riyadh, Saudi Arabia
  • Ataturk International Airport, Istanbul, Turkey

The carriers involved will have 96 hours, until early in the morning of March 25, to comply with this directive.

No American carriers are affected because none have direct flights to the U.S. from the 10 airports. Based on itineraries, the following carriers have been notified and will be affected:

  • Egypt Air
  • Emirates Airways
  • Etihad Airways
  • Kuwait Airways
  • Qatar Airways
  • Royal Air Maroc
  • Royal Jordanian Airlines
  • Saudi Arabian Airlines
  • Turkish Airlines

All passengers will be subject to these restrictions, including U.S. citizens, regardless of Trusted Traveler Status. Approved medical devices will be allowed on board, but only after additional screening is conducted. TSA advises passengers with connections through one of the 10 airports to place large electronic devices into their checked baggage at their originating airport.

The DHS states that it has put these restrictions in place because “[the agency’s] information indicates that terrorist groups’ efforts to execute an attack against the aviation sector are intensifying . . . .” These restrictions will remain in effect indefinitely “until the threat changes.” TSA emphasizes that it “continually assesses and evaluates the current threat environment and adjusts security measures as necessary to ensure the highest levels of aviation security without unnecessary disruption to travelers.”

In addition to the new PEDs process, all travelers to the U.S. should be prepared for the possibility that their electronic devices might be “detained” for examination and inspection upon arrival in the U.S. Indeed, in February 2017, after the issuance of the first travel ban, Sidd Bikkannavar, a U.S.-born NASA scientist who works at NASA’s Jet Propulsion Laboratory returning from Patagonia was held at the George Bush Intercontinental Airport in Houston until he agreed to unlock his phone.

Following the DHS announcement, the U.K. announced a similar restriction on direct flights to the U.K. affecting airports in Egypt, Jordan, Lebanon, Tunisia, Turkey, and Saudi Arabia. This restriction will affect British carriers including British Airways as well as foreign carriers. Canada may soon announce such restriction as well.

Please contact a Jackson Lewis attorney if you have any questions.

Employers who place workers at  multiple worksites, whether theirs or someone else’s, must include the assignment’s details to the Department of Labor (DOL) and the Citizenship & Immigration Service (CIS) on H-1B petitions.  As the nation’s workforce embraces alternative work modes  (e.g., remote workers, roving employees, and virtual office workers), foreign nationals  who are so employed  and their employer-petitioners face greater scrutiny than those petitioning for “traditional” work.

H-1B regulations require that an employer wishing to post an H-1B worker at multiple worksites must provide an itinerary that will cover the entire period of H-1B employment requested, specifying the amount of time the employee will spend at each worksite.  If the employer cannot establish that a qualifying employer-employee relationship will exist during the entire period sought, USCIS may limit a petition’s validity to periods of qualifying employment established by the evidence.  Therefore, it is critical that the petitioner be ready to provide a detailed work itinerary for the employee’s assignments for the duration of the proposed H-1B validity.

Jackson Lewis has a national team of expert H-1B attorneys who work with employers of all sizes to structure H-1B filings that comply with these regulations. We can assist employers with the drafting of clear itineraries and with documenting the appropriate employer-employee, controlling relationship required by CIS.