New USCIS Policy Memorandum Suggests Additional Documentary Requirements for Employers Placing H-1B Workers at Client Sites (February 22, 2018)
The US Citizenship and Immigration Service (USCIS) issued a Policy Memorandum, titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” which is effective immediately and compliments the 2010 USCIS Memorandum “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (aka the “Neufeld Memo on Employer-Employee Relationship”). Notably, it also supersedes two Memos from 1995, 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, making clear USCIS intends to expand such requests going forward.
The USCIS Policy Memo aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers. The H-1B petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for the specific H-1B beneficiary for the entire time requested on the petition. The H-1B petitioners must further show that they will maintain an employer-employee relationship with the beneficiary for the duration of the requested H-1B validity period, as documented by contracts, statements of work, and other similar types of evidence (See 8 CFR 214.2(h)(9)(ii)(A) and (iii)).
The Policy Memo further clarifies that while an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
Importantly, the February 22, 2018 Policy Memo states that for third-party placements of H-1B workers, the petitioner must provide “additional corroborating evidence, such as contracts and work orders, may substantiate a petitioner’s claim of actual work in a specialty occupation” such as:
• Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
• Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite.
• Copies of detailed statements of work or work orders signed by an authorized official of the ultimate end-client company where the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.
• A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.
Additionally, the Policy Memo emphasizes the importance of the submission of contracts as evidence to demonstrate the H-1B employer will maintain an employer-employee relationship with the H-1B beneficiary for the duration of the requested validity period.
The Policy Memorandum further makes it clear that per 8 CFR 214.2(h)(2)(i)(B), the H-1B petitioners must provide an itinerary when the H-1B worker will perform professional services in more than one location. The itinerary must include the dates and locations of the services to be provided, and there is no exemption from this regulatory requirement. The itinerary should detail when and where the beneficiary will be performing services and should specify the following:
• The dates of each service or engagement;
• The names and addresses of the ultimate employer(s);
• The names, addresses (including floor, suite, and office) and telephone numbers of the locations where the services will be performed for the period of time requested; and
• Corroborating evidence for all of the above.
The USCIS Policy Memo applies to all H-1B third-party worksite petitions, including H-1B extensions when the H-1B petitioner should also establish that the H-1B requirements have been met for the entire prior approval period. This 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. Importantly, if the terms and conditions of the initial approval period were not met and the petitioner has demonstrated eligibility for the subsequent petition, the extension petition may be approved, but the extension of stay request may be denied (See 8 CFR 214.1(c)(4)). This applies both to petitions where the beneficiary will remain at the same worksite or be placed at a new worksite.
It remains to be seen how the USCIS will implement this Policy Memo, but it is a clear signal that it intends to impose further restrictions on US employers hiring H-1B workers and placing them at third-party worksites.