October 22, 2019

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New USCIS Memo Formalizes Additional Requirements for H-1Bs at Third Party Worksites

In support of its efforts to combat H-1B fraud and consistent with President Trump’s Buy American Hire American initiative, the U.S. Citizenship and Immigration Services (USCIS) will now require employers sponsoring H-1B workers at third-party worksites to include additional information and documentation in their H-1B filings. The new policy memorandum “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites", effective Feb. 22, 2018, largely formalizes existing USCIS policy on H-1B petitions involving third-party worksites, but also spells out new requirements regarding end-client letters and itineraries.

USCIS indicates that this new memo is a continuation of USCIS’s previous policy memo on third-party worksite H-1B petitions from Jan. 8, 2010, “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (also known as the Employer-Employee Memo) and that employers should provide the additional documentation and information described in the memo in order to show by a preponderance of the evidence that (1) the H-1B worker will be employed in a specialty occupation; and (2) the employer will maintain an employer-employee relationship with the H-1B worker for the duration of the requested employment period.  In short, the employer must establish that it has “specific and non-speculative qualifying assignments in a specialty occupation for the [employee] for the entire time requested on the petition.”

Companies that sponsor H-1B employees working at third-party worksites will recognize much of the additional evidence described in this memo as USCIS routinely requests these documents in Requests for Evidence.  To prove that the H-1B worker at a third-party worksite will be employed in a specialty occupation and that the employer-employee relationship exists, the memo says that employers should submit contracts and work orders, work product, and contractual agreements related to the H-1B employee’s placement.  While an end-client letter is not a new requirement, the memo specifies that the end-client letter should include a detailed description of the H-1B employee’s job duties, the job requirements, the duration of the job, the salary, hours worked, benefits, and information about who will supervise the H-1B employee. It is sometimes difficult for H-1B employers to obtain end-client letters and requiring so much information in a letter will make the process more difficult. It is also unclear why an end-client would have detailed information about an H-1B employee’s employment since the end-client is not the employer. Requiring an end-client to provide this information about an H-1B visa holder providing services at its facility also raises concerns about joint employment.

Similarly, USCIS often requests itineraries in Requests for Evidence issued on third-party worksite H-1B petitions. The memo confirms the itinerary is a regulatory requirements and that employers must provide detailed itineraries for each worksite listed in the petition or the petition will be denied.

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About this Author

Rebecca B. Schechter, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney
Of Counsel

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations and companies, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify...