H-1B Court Decision Impacts Tech Subcontractors

The U.S. District Court for the Northern District of Georgia ruled on May 20 that a 2018 policy memo by USCIS was invalid, and employers don’t need to submit information related to work requirements and where the worker will be based.

The original USCIS memo justifies the original need for that information by pointing to potential employer abuses.

“Therefore, in order to protect the wages and working conditions of both H-1B and U.S. workers and prevent abuse or fraud, USCIS policy should ensure that officers properly interpret and apply the statutory and regulatory requirements that apply to H-1B petitions involving third-party worksites.”

But this new court decision argues that USCIS doesn’t need “evidence with that level of micro-granularity”. The decision added: “Because the Court finds nothing in the statute or regulations requires a “detailed itinerary” setting forth everything the prospective visa beneficiary will be doing day by day for 3-years, there was no interpretive basis for the Agency to suggest that such information is necessary or advisable in most cases to include in connection with an H-1B petition.”

A DOL dataset of H-1B visa applications released late last year showed that a large number of companies relied on H-1Bs as “secondary entities” or subcontractors. Some of the biggest IT companies, such as Google, Microsoft, and IBM, sourced thousands of H-1B workers from subcontracting agencies.