By: Gladys V. Gervacio, Omar Nazarkhan

Executive Summary:

On February 22, 2018, the Unites States Citizenship and Immigration Services (USCIS) clarified evidence related to H-1B workers placed at one or more off-site third-party. This policy memorandum is just the latest change in line with the directives set forth by the Trump Administration’s “Buy American, Hire American” executive order advocating to “protect the interests of U.S. workers”.

What Employers Should Know

Petitioners may place their H-1B workers at their end-client’s location as long as they meet certain requirements that show they control the worker.

USCIS has outlined the following guidance regarding the additional evidence that may substantiate the employer-employee relationship at a third-party worksite:

1. You must provide contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation. To prove specialty occupation, petitioners may submit the following types of evidence:
   • 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.
2. You must provide contracts as evidence to demonstrate the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. Employers should make available “the chain of contracts and/or legal agreements” so that USCIS may determine if this relationship exists. Petitioners need to know that an employer-employee relationship must exist for H-1B purposes and this goes beyond paying a salary. This is even more important as more middle vendors are implicated.
3. You must provide itinerary as a regulatory requirement and as evidence of specialty occupation. Petitioners are required to provide an itinerary with any petition when the beneficiary’s services will be performed in more than one location. The itinerary must include the dates and locations to be provided. No exemptions are made from this requirement, when multiple locations are specified on the petition.Please include:
   • 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.

Potential Impact to Employers

It is evident that USCIS is scrutinizing the petitioner’s ability to control, supervise, and prove that there is an employer-employee relationship as required by regulation. This trend will continue in 2018.

For instance:

• A failure in providing proof that confirms the above mentioned when filing an H-1B petition or with a Request for Evidence (RFE) may result in USCIS denying the petition – in some circumstances on the initial filing.
• Validity period of approved petition. Though approvals for H-1B petitions may be granted for up to three years, USCIS will exercise discretion in limiting this approval period based on the evidence submitted.
• When filing to extend H-1B employment with the same petitioner, that petitioner must show that the H-1B requirements – including that the beneficiary worked in a specialty occupation, was paid the required wage, and that his/her employment was controlled by the employer – were satisfied during the previous approval period.

How Employers Can Stay Updated During this Period

Given this announcement, it is imperative for employers to seek sound advice and to plan properly for any unexpected changes. We encourage employers to do the following:

• Work with your Immigration Practitioner to address any questions or concerns you should have and for more information regarding revised instruction for individual forms and their signature requirements. For examples, of what types of evidence could be required, please contact us.
• Plan ahead, especially with the impending H-1B Cap season (FY 2019). Documentation is key at the time of filing.

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