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“The agency appears to be encroaching into the Department of Labor’s turf, and asserts it will now enforce benching standards. “An officer should deny a petition when the petitioner has not established that the beneficiary will work in a specialty occupation,” according to the new policy memo. “While a petitioner is not required to identify and document the beneficiary’s specific day-to-day assignments, the petitioner must meet all statutory and regulatory requirements, excluding the itinerary requirement under 8 CFR 214.2(h)(2)(i)(B).” » Immigration Law Updates.
Before that I spent four and a half years on Capitol Hill on the Senate Immigration Subcommittee, first for Senator Spencer Abraham and then as Staff Director of the subcommittee for Senator Sam Brownback. “In the prior memo they justified this approach using the itinerary regulation, which was invalidated by the court,” said Wasden.
“Here, they look to accomplish it with a new justification found in the regulation requiring amendments for material change. The obvious problem is that Judge Collyer’s decision, and the plain language of the statute, make clear that an employee can be ‘benched’ when there is no work to perform as long as they are given the required wage. If USCIS tries to enforce this, we will be back in court.”Under the Trump administration, USCIS claimed it was enforcing the anti-benching provisions of the law when it denied H-1B petitions if a petitioner could not prove an individual would work continuously by showing a series of contracts. USCIS will not implement the June 28, 2018, NTA Policy Memo with respect to employment-based petitions at this time. I am the author of a non-fiction book called Immigration.Before the settlement, as addressed in the March 10, 2020, opinion by U.S. District Judge Rosemary M. Collyer, employers faced several problems with USCIS policies, including the agency’s interpretation of an employer-employee relationship, an itinerary rule and short term approvals of H-1B petitions.The new USCIS policy memo states, “In support of the petition, an H-1B petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner and third parties.” However, it remains to be seen how USCIS adjudicators interpret their discretion to request contracts indicating future work.
Guilford College v. USCIS, May 3, 2019 "Plaintiffs’ lawsuit relates to the U.S. USCIS Issues Policy Memo on H-1B Placement at Third Party Worksite February 26, 2018 .
“The agency appears to be encroaching into the Department of Labor’s turf, and asserts it will now enforce benching standards. “An officer should deny a petition when the petitioner has not established that the beneficiary will work in a specialty occupation,” according to the new policy memo. “While a petitioner is not required to identify and document the beneficiary’s specific day-to-day assignments, the petitioner must meet all statutory and regulatory requirements, excluding the itinerary requirement under 8 CFR 214.2(h)(2)(i)(B).” » Immigration Law Updates.
Before that I spent four and a half years on Capitol Hill on the Senate Immigration Subcommittee, first for Senator Spencer Abraham and then as Staff Director of the subcommittee for Senator Sam Brownback. “In the prior memo they justified this approach using the itinerary regulation, which was invalidated by the court,” said Wasden.
“Here, they look to accomplish it with a new justification found in the regulation requiring amendments for material change. The obvious problem is that Judge Collyer’s decision, and the plain language of the statute, make clear that an employee can be ‘benched’ when there is no work to perform as long as they are given the required wage. If USCIS tries to enforce this, we will be back in court.”Under the Trump administration, USCIS claimed it was enforcing the anti-benching provisions of the law when it denied H-1B petitions if a petitioner could not prove an individual would work continuously by showing a series of contracts. USCIS will not implement the June 28, 2018, NTA Policy Memo with respect to employment-based petitions at this time. I am the author of a non-fiction book called Immigration.Before the settlement, as addressed in the March 10, 2020, opinion by U.S. District Judge Rosemary M. Collyer, employers faced several problems with USCIS policies, including the agency’s interpretation of an employer-employee relationship, an itinerary rule and short term approvals of H-1B petitions.The new USCIS policy memo states, “In support of the petition, an H-1B petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner and third parties.” However, it remains to be seen how USCIS adjudicators interpret their discretion to request contracts indicating future work.
Guilford College v. USCIS, May 3, 2019 "Plaintiffs’ lawsuit relates to the U.S. USCIS Issues Policy Memo on H-1B Placement at Third Party Worksite February 26, 2018 .