The ITServe Alliance lawsuit against USCIS has the potential to increase the approval of H-1B applications, particularly those that are filed by IT consulting companies. Before the court ruled in favor of IT Serve Alliance, USCIS put increased restrictions on H-1B requirements such as the employer-employee relationship, non-speculative work, and itinerary requirements.
The employer-employee requirement made it increasingly difficult for H-1B employers to prove that there would be an employer-employee relationship between the employer and recipient of the H-1B visa. This is because employers would have to prove all aspects of the requirement including verification that they were able to “hire, pay, fire, supervise” and “otherwise control the work of any such employee…” After the lawsuit was won by IT Serve Alliance however, it was found that H-1B employers could prove an employer-employee relationship by verifying only one aspect of the list detailed above; ie, if an employer can prove that it has hired a person, the employer-employee relationship has been subsequently proven to exist. Additionally, the non-speculative work and itinerary requirement only related to H-1B employers where H-1B recipients would be working at a third-party worksite, which largely applies to IT consulting companies.
By ruling on the side of IT Serve Alliance, the court has loosened restrictions on IT consulting companies and other potential H-1B employers that previously made it difficult for H-1B applications to be approved. In the settlement between IT Serve Alliance and USCIS, it was agreed that USCIS would re-open and adjudicate the H-1B applications from those companies within the IT Serve Alliance that had previously been denied. However, USCIS has not agreed to reopen cases from other companies that experienced similar issues, so if an H-1B application was denied under similar circumstances it would be necessary to take legal action similar to IT Serve Alliance in order to get formerly denied H-1B applications approved.
In the future, USCIS will not be allowed to require the non-speculative work requirement or itinerary requirement for H-1B employers whose employees will work at third-party worksites. USCIS will also not be able to label the employer-employee relationship qualifications as strictly as it had before the court’s ruling and will not issue approvals for H-1B petitions with validity periods shorter than the requested period unless there is an explanation listed as to why the validity period has been limited. Though the outcome of this settlement serves to benefit primarily H-1B applicants in relation to IT consulting companies, all H-1B applicants will benefit from an anticipated increase in approvals of requested time periods and the removal of a strict definition of the ‘employer-employee relationship’ that could prohibit an applicant from receiving an H-1B visa.
This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call me at 214-494-8033, complete my contact form