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 the

    petitioner and all other companies involved in the

    beneficiary's placement;

  • copies of detailed statements of work

    or work orders signed by an official of the end client,

    including:

    • the specialised duties that the

      beneficiary will perform;

    • the qualifications required to

      perform the job duties;

    • the duration of the job; and
    • the hours worked; and
  • a letter signed by an authorised

    official of each end-client company where the beneficiary will work

    proving a detailed description of:

    • the specialised duties that the

      beneficiary will perform;

    • the qualifications needed to perform

      the duties;

    • the duration of the job, salary,

      hours worked and benefits; and

    • a detailed description of who will

      supervise 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 or

    engagement;

  • the names and addresses of the

    ultimate employers;

  • the names, addresses (including

    floor, suite and office) and phone numbers of the locations where

    the services will be performed; and

  • corroborating evidence for the above

    items.

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 technical

    milestones;

  • specific duties to be performed;
  • qualification required to perform the

    job 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.

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