On March 12 2012 US Citizenship and Immigration Services issued revised H-1B guidelines that modify the January 2010 Neufeld memo.(1) That memo amounted to a major rule change without formal publication, and imposed heavy additional documentation requirements on H-1B petitioners, including demands for end-user memos and full itineraries for the assignment of workers posted at all client sites for the duration of an H-1B petition.
The March 12 question and answer guidelines lift the requirement for end-user memos, while leaving most of the rest of the Neufeld memo intact.
The most significant liberalisation appears to be contained in Question 5, with the relaxation of the former requirement for an end-user letter identifying the beneficiary:
"Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?
A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist."
Otherwise this directive does not appear seriously to reverse the Neufeld memo. In particular, the answer to Question 11 maintains the requirement for production of 'full itineraries' of outplacement sites, and restates that the petition will be approved only as far as that detailed agenda is specified. In addition, a new labour condition application must be filed for each additional location (as per the previous rule at 8 CFR 214.2(h)(2)(i)(B)). However, the guidelines do recommend that such an end-user letter continue to be filed:
"Q11: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?
A11: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, if you are employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary."
Another change that may affect some filers is Question 10, an apparent relaxation of the documentation requirement for a change of employer of a H-1B worker. A new petitioner that hires a worker with an existing H-1B will not be held to the same high standards of documenting the previous employer's control as an extension filed with a petition renewal:
"Q10: What if I am filing a petition requesting a "Change of Employer" and an extension of stay for the beneficiary's H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?
A10: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions."
Otherwise, the guidelines appear to contain little substantive change.
For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).
(1) The full text of the updated guidance can be found at www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnV