U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.
USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. “This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location,” USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:
- The beneficiary will be employed in a specialty occupation; and
- The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. 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.
USCIS said the updated policy guidance aligns with President Trump’s “Buy American and Hire American” Executive Order and directive to protect the interests of U.S. workers.
Reaction. Some immigration attorneys have noted that the new policy suggests that further evidence may be needed in addition to contracts and work orders, such as more details in the work orders or in letters from the end client regarding the beneficiary’s work assignment. It appears that employers will need to provide more evidence to establish that the H-1B worker will be performing qualified duties under the H-1B program at the end client. If USCIS does not have evidence that this is the case, it could either deny the H-1B petition or grant it for less than three years. According to reports, requests for evidence in response to H-1B visa applications were up 45% (a total of 85,265 requests) in January to August 2017 over the same time period a year earlier.