New H-1B Policies Following USCIS Memo On Third-Party Placement Requirement
Introduction
Employers placing an H-1B employee at a third-party worksite
must establish that the employee will be employed in a specialty
occupation and that the employer will maintain an employer-employee
relationship. What constitutes an ’employer’ and
’employee’ in immigration law has not always been well
defined. As such, the definitions have been clarified by various
United States Citizenship and Immigration Services (USCIS)
memoranda. On February 22 2018 USCIS released a policy memorandum
detailing the document requirements for H-1B petitions involving
third-party worksites. The 2018 memo is intended to be read
together with a USCIS memo from 2010 providing the definition of
the employer-employee relationship for H-1B petitions.
USCIS has also announced that it is working on regulations to
revise the definition of ‘specialty occupation’ to focus on
obtaining the best and brightest foreign nationals via the H-1B
programme, as well as the definition of ’employer-employee
relationship’.(1)
USCIS has acknowledged that third-party arrangements may be a
legitimate and frequently used business model and outlined the
documents required to use this model. If employers do not include
the mentioned corroborating evidence, USCIS may deny the petition.
When announcing the new memo, USCIS stated that the updated policy
guidance aligns with President Trump’s “Buy American and
Hire American” Executive Order and directive to protect
American workers.
Additional evidence required
The memo indicates that the following evidence is required when
employers place a foreign national employee at a third-party
worksite:
- copies of contracts between thepetitioner and all other companies involved in the
beneficiary’s placement;
- copies of detailed statements of workor work orders signed by an official of the end client,
including:
- the specialised duties that thebeneficiary will perform;
- the qualifications required toperform the job duties;
- the duration of the job; and
- the hours worked; and
- a letter signed by an authorisedofficial of each end-client company where the beneficiary will work
proving a detailed description of:
- the specialised duties that thebeneficiary will perform;
- the qualifications needed to performthe duties;
- the duration of the job, salary,hours worked and benefits; and
- a detailed description of who willsupervise the beneficiary.
More detailed itinerary required
The memo also indicates that a more detailed itinerary can help
to demonstrate that the petitioning employer has non-speculative
employment. Additional details in the itinerary can include the
following:
- the dates of each service orengagement;
- the names and addresses of theultimate employers;
- the names, addresses (includingfloor, suite and office) and phone numbers of the locations where
the services will be performed; and
- corroborating evidence for the aboveitems.
The employer must show that these items will continue to exist
through the duration of the H-1B validity period. USCIS will limit
the approval period to the length of time that the foreign national
employee will engage in non-speculative work and maintain an
employment relationship with the petitioner.
Implementing the memo
Employers should make their contracts with end clients more
specific in order to include the following:
- work assignment with technicalmilestones;
- specific duties to be performed;
- qualification required to perform thejob duties; and
- duration and hours to be worked.
Further, it is recommended to include a detailed letter from an
authorised individual of the ultimate end client which includes
specific job duties. Notably, the duration of approvals may be
limited based on the information provided in the contracts and
letters. The same treatment in evaluating which third-party
placements and documents to include will also be applied to
extension petitions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.