On February 22nd, the USCIS issued a new policy memo on 3rd party placement. The new guidelines have immediate effect and will apply to this year’s H-1B cap petitions as well as H-1B extension requests. Generally speaking, petitioners planning third-party placements of H-1B employees will be asked to submit contracts, specific itineraries, and detailed information from end-clients covering the entire period of employment. Adjudicators will be looking at contractual relationships between petitioners, subcontractors and end-clients to assess right to control issues during employment. USCIS may limit H-1B approval periods to the length of time indicated by contracts and other end-client documentation, or deny cases if documentation is deemed insufficient.
The new policy will require H-1B employers to disclose detailed information about vendor and end-client relationships when petitioning for employees who will be placed at third-party sites.
In the past, our firm has always recommended that H-1B petitioners provide information about third-party assignments since this has been a longstanding practice as set out by various USCIS memos. The new guidelines indicate that the agency will scrutinize relationships among petitioners, subcontractors and end-clients even more closely than in the past, and will seek direct confirmation of H-1B assignments from end-clients in initial petitions and extensions.
Further, the new guidelines will require petitioners to document that there are specific H-1B-qualifying assignments for the entire period of an H-1B worker’s employment.
Adjudicators will require evidence submitted by end-client’s to determine if the work performed by the H-1B employee at a third-party worksite will be in a specialty occupation. USCIS will also use contracts and related documentation to determine whether the petitioner will maintain an employer-employee relationship with the H-1B worker throughout the period of employment.
The USCIS Memo offers a list of possible evidence including:
- Signed contracts with the end-client and all other companies involved in the H-1B employee’s assignment.
- Documents signed by the end-client specifying the specialized duties the H-1B employee will perform, the qualifications required to perform the duties, the duration of the job and the hours to be worked, such as a statement of work, work order or a letter signed by an authorized official of the end-client.
- Detailed evidence of work assignments, including technical documents, marketing analyses, and funding documents.
Although petitions can redact sensitive information from these documents, USCIS warns that the evidence must be detailed enough for adjudicators to determine whether assignments meet H-1B program rules.
Itineraries have long been a requirement for H-1B third-party placements. However, the new guidelines will require specific information including , exact dates, names and addresses of intermediary vendors and end-clients, exact addresses and phone numbers of work locations, as well as corroborating evidence for these details. As a result, putting together a successful H-1b petition will involve yet a higher level of preparation on the part of the petitioner.
Impact on H-1B Extensions
Extensions will undergo the biggest change. Employers filing extension petitions will need to
- Confirm and provide corroborating evidence that the beneficiary’s past third-party placements met H-1B program requirements throughout the previous employment period,
- Show compliance that the salary stated on the previous petition was paid.
- Show that there was and continues to be specialty occupation work
- Show that the employer retains the right to control the beneficiary’s work.
This policy is consistent with USCIS’s new policy against deference to past petition approvals and its policies on work location changes under Matter of Simeio Solutions.
Finally, the new guidelines give USCIS adjudicators increased authority to limit H-1B approval periods to less than the three-year maximum validity or to deny petitions if the employer cannot show that it has specific specialty occupation assignments to cover the full requested period of H-1B employment.