USCIS has rescinded two of their most anti-H1B, namely the January 2010 Employer-Employee Relationship memo and the February 2018 Contracts and Itineraries Requirements memo.
The memo itself can be read here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf
So, what does this mean?
Since the 2010 Employer-Employee relationship memo, USCIS denied countless H1Bs an a progressively greater proportion by concluding that the employer must prove a right to control the worker. This memo redefined “employer-employee relationship” to essentially mean that the employer has to prove a right to control the worker, which was difficult in some cases for consulting companies placing their workers at client worksites. Going forward, USCIS must now apply the proper definition of employer-employee relationship, which is that the employer must only show it has the right to hire, pay, fire, supervise, or otherwise control the work of the worker. We can speculate that a support letter attesting under penalty of perjury that employment exists and that the employer will employ the worker in the specialty occupation would be sufficient. Time will tell if USCIS will expect more than just a support letter, so we recommend still documenting cases to prove as many of these factors as possible.
By 2018, things became much more difficult when USCIS formally issued its Contracts and Itinerary memo, stating that evidence and an explanation of day-to-day assignments and contracts are required to prove that the position is in a specialty occupation. USCIS strictly enforced this, denying H1Bs at a much higher rate where the job was to be done at a client worksite, and there was a lack of a chain of contracts provided. USCIS now says an H1B petitioner is not required to submit contracts between the petitioner and third parties. We can speculate that consulting companies may just be fine to submit a support letter to explain they are a consulting company and that there is qualifying work at a particular client site, and provide job duties, and this may be sufficient. We still recommend documenting cases with contracts if they are available and/or client letters, just in case. Perhaps sending just a client letter, and see what USCIS will do beyond that may be a potential way to prepare petitions.
USCIS may potentially find other bases to create obstacles for employers to get their H1Bs approved, but this rescission memo is possibly the best news we’ve seen in H1B petitions since the program was founded, and we expect USCIS’s general H1B approval rates to reach highs not seen in several years.