Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Citizenship and Immigration Services (USCIS) has published a memorandum establishing its policy relating to H-1B petitions filed for employees who will be working at one or more third-party worksites. The newly released guidance supersedes two previous memos, which required USCIS to make requests for contracts involving H-1B petitions only (1) where the officer could articulate a specific need for such documentation, and (2) on a case-by-case basis. The memo, effective February 22, 2018, is a move, according to the USCIS, that “aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers.”1
The guidance stipulates that, in H-1B petitions where a third-party worksite is involved, the petitioner must show:
- The beneficiary will be employed in a specialty occupation; and
- The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
Indicating that “[s]cenarios involving a third-party worksite generally make it more difficult to assess whether the petitioner has established that the beneficiary will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist,” USCIS will now require employers to include additional information and documentation in H-1B petitions outlining the work done at third-party worksites and showing that the employer-employee relationship between the petitioner and H-1B beneficiary will continue to exist. The guidance also requires petitioning employers to provide documents including the company’s work product, statements of work, letters from each end-client company, and contracts. Additionally, the memorandum reiterates the regulatory requirement for the petitioner to provide itineraries that include the dates and locations of the services to be provided.
The petitioner will be required to establish that the above elements will continue to exist throughout the duration of the requested H-1B validity period. Likewise, upon extending an H-1B for a beneficiary placed at one or more third-party worksites, the petitioner must also establish that the H-1B requirements were met for the entire prior approval period. Specifically, the memo states:
[t]his includes establishing that the beneficiary worked in the specialty occupation, that he or she was paid the required wage, and that the employer maintained the right to control the beneficiary’s employment. If the petitioner did not comply with the terms and conditions of the original petition and did not file an amended petition on time, USCIS may have eligibility concerns about a subsequent petition filed to extend the beneficiary’s employment.
Employers should take note of this guidance going forward and be prepared for increased scrutiny from USCIS on H-1B petitions for employees working at third-party worksites.
1 See USCIS’s News Release, entitled “USCIS Strengthens Protections to Combat H-1B Abuses” available at https://www.uscis.gov/news/news-releases/uscis-strengthens-protections-combat-h-1b-abuses.