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US Immigration Policy Visas - H-1b, L-1, E, O, TN

H-1b Victory with a Capital V !

Yesterday, the USCIS was handed another defeat at the hands of a Federal Judge, this time from Atlanta. In a case that echoed prior decisions from other Federal Courts, the Court ruled that the USCIS’ practice and policy over the past 10+ years relative to H-1b adjudications was unlawful. The decision struck at the interpretation of employer-employee and the itinerary requirement which had resulted in the issuance of shortened approval notices. A copy of the full decision can be read here

In even better news, the USCIS conceded defeat in only what can be imagined as the scene from the Wizard of Oz when it was proclaimed “Ding Dong the Witch is dead” and they entered into a settlement agreement.

This settlement agreement provides for the following:

1. The USCIS will rescind the 2018 Contracts and itinerary memo
2. The USCIS will stop applying the current itinerary language

A portion of the settlement agreement states that they will not apply the Neufeld memo but, this may be more limited than it is being reported.

What does this mean practically ?
1. There should be no more shortened approval notices limited by the duration of the WO/JO/SOW.
2. End client letters or other documentation should not be routinely required but, the USCIS may continue to ask for this type of documentation to prove the existence of a job that meets the specialty occupation standards
3. The USCIS will not automatically re-open previously shortened cases and issue full approval notices but, you can go into Federal Court and force this action.

As a result of these actions, we can expect the USCIS to issue new regulations but, given the amount of time it takes for regulations to be finalized, these will likely be completed by the Administration that wins in Nov.

A special thanks and salute to Jonathan Wasden and his team for these hard fought victories.

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