USCIS Toughens Requirements for Third-Party Placement of H-1B Employees

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At a glance

• 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.
• USCIS adjudicators will scrutinize contractual relationships among H-1B petitioners, subcontractors and end-clients to assess whether petitioners will retain the right to control H-1B employees throughout the period of employment.
• USCIS may limit H-1B approval periods to the length of time corroborated by contracts and other end-client documentation, or deny cases if documentation is deemed insufficient.
• The new guidelines have immediate effect and will apply to FY 2019 H-1B cap petitions as well as H-1B extension requests.

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A closer look

A new USCIS 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. Though USCIS has long asked H-1B petitioners to provide information about third-party assignments, 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. More broadly, the new policy gives USCIS the ability to scrutinize an organization’s practices and patterns of engagement with subcontractors and customers.

Client contracts

The new guidelines require petitioners to document that there are specific H-1B-qualifying assignments for the entire period of an H-1B worker’s employment. USCIS adjudicators will require corroborating evidence that the work performed by the H-1B employee at a third-party worksite will be in a specialty occupation, and will examine the end-client’s requirements to make that determination. 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.

According to USCIS, acceptable corroborating evidence includes:

• 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.

Organizations can redact sensitive information from these documents, but USCIS cautions that evidence must be comprehensive and detailed enough for adjudicators to determine whether assignments meet H-1B program rules.

Itineraries

Itineraries have long been a requirement for H-1B third-party placements, but the new guidelines will require employers to provide specific information about H-1B assignments, 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. USCIS will use this information to determine whether the employer has qualifying assignments to cover the entire requested period of H-1B employment.

Impact on H-1B Extensions

The new guidelines will significantly heighten USCIS scrutiny of H-1B extensions. Employers filing extension petitions will not only need to document future third-party assignments, they 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, including LCA compliance, specialty occupation work and employer retention of the right to control the beneficiary’s work. This 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.

Impact on H-1B Periods of Employment

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.

If you have questions about the new third-party placement guidelines, please contact the immigration professional with whom you work at Fragomen. This alert is for informational purposes only.