On February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum clarifying the requirements for H-1B petitions filed on behalf of workers who will be employed at one or more third party worksites. In other words, this guidance applies to foreign workers seeking H-1B status who will be assigned by their employers to work at an end-client’s facility or worksite, rather than at the actual employer’s facility or worksite.
This new guidance will affect certain industries more than others. The Information Technology industry and other industries that regularly assign their employees to work at end‑client sites should carefully consider the new requirements explained below when filing H‑1B petitions for employees who will work at off-site locations. Employers who do not regularly send their employees to work at third party sites may still be impacted by this new guidance, as their vendors may request contracts or letters of support that provide additional details about employees of the vendor assigned to work at the employer’s worksite.
The new policy memorandum clarifies that an employer sponsoring a foreign worker for H-1B status who will be assigned to third party worksite must demonstrate that there are “specific and non‑speculative qualifying assignments in a specialty occupation … for the entire time requested on the petition.” Notably, the memorandum supersedes previous guidance from USCIS indicating that “submission of … contracts [between the employer and the third party worksite] should not be a normal requirement for the approval of an H-1B petition filed by an employment contractor.” The guidance clarifies that uncorroborated statements from the employer describing the role that the H-1B applicant will perform at the third party worksite will no longer be sufficient. Instead, USCIS provides a list of supporting evidence that may be used to demonstrate that the H-1B applicant has actual work assignments in a specialty occupation, including the following:
- Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
- Signed contractual agreements between the employer, the end-client, and any intermediary parties;
- Detailed statements of work or work orders signed by the end-client; and
- Letters from the end-client providing a detailed description of the employee’s duties and how the employee will be supervised, the qualifications required to perform the duties, the duration of the job, salary, hours, and benefits.
While USCIS just released this new guidance, in practice, the USCIS Service Centers have been requiring similar supporting documents in recent years. The memorandum does, however, clarify that “contractual agreements that merely set forth the general obligations of the parties to the agreement, and that do not provide specific information pertaining to the actual work to be performed, may be insufficient.” Thus, more detailed descriptions of the work to be performed by the employee may need to be included either in the contract or in a letter from the end-client.
Employers should also keep in mind that the evidence submitted should generally cover the duration of the requested validity period. The memorandum states that “USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the [employee] will be placed in non-speculative work and that the [employer] will maintain the requisite employer-employee relationship.” Thus, if the employer requests H-1B status on behalf of an employee for a period of three years, the employer should submit contracts or some other evidence (if available) establishing that there will be work assignments for the employee throughout the three years requested.
In addition to submitting the evidence referenced above, employers filing H-1B petitions on behalf of employees who will be assigned to multiple third party worksites must also provide an itinerary with the dates and locations of the services to be provided. The new policy memorandum explicitly rescinds previous guidance indicating that exact dates and places of employment are not required.
The full text of the policy memorandum and USCIS’s announcement regarding the memorandum can be found here.
Mollie E. Hennessee practices primarily in the areas of immigration, higher education, and employment law. She represents corporations, educational institutions, and individuals with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization. Mollie also represents institutions of higher education with respect to employment and termination matters, student rights, and civil rights. Prior to joining the Firm, Mollie worked for the Department of Homeland Security’s Immigration and Customs Enforcement as an Assistant Chief Counsel. While in law school, Mollie served as an intern for the Honorable Catherine D. Perry of the United States District Court in Eastern Missouri. Mollie earned her B.A. from Saint Louis University, where she also received her law degree.
Our firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.