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, but 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.

For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.

Endnotes

(1) For further information, see the April 4 2018 USCIS letter to Senator Grassley (www.aila.org/infonet/uscis-letter-to-senator-grassley-on-strengthening).

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