New Guidance on H-1B Petitions for Third-Party Site Workers
Meeting a Higher Burden of Proof
In what has already been a strenuous time for the H-1B specialty occupation visa program, United State Citizenship and Immigration Services (USCIS) has released another policy memorandum on February 23, 2018 further tightening the hoops which many prospective petitioners will have to jump through.
This memo, entitled "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites," seeks to increase the rigidity of rules enforced by prior guidance on the matter. Namely, its main purpose seems to be to heighten the burden of proof petitioners must meet in order to demonstrate that the third-party workers they hire out to clients are still meeting the conditions of an employer-employee relationship and specialty occupation work standards.
As is usually the case, accompanying these new requirements are a slew of additional and more detailed documentary evidence to be submitted with these petitions, as well as a significantly higher degree of scrutiny by USCIS adjudicators.
According to USCIS's new memorandum, its objective in the newly specified policy is to ensure that beneficiaries truly are employed in a specialty occupation, meaning that that "the petitioner has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition." Furthermore, it is also essential that the employer-employee relationship be maintained between the petitioner and the beneficiary for the duration of the stay.
Proving that one is abiding by these standards when the petitioning company is primarily engaged in the third-party leasing of workers out to clients can be difficult, which is perhaps why previous memorandums were much more generalized in their stipulations. Thus, while the goals of this new guidance are not new in and of themselves, the evidence required to corroborate a conforming reality to these rules is.
Proving that the Work is a True Specialty Occupation
It is asserted that the petitioner must demonstrate that it has specific and non-speculative specialty occupation assignments for workers who will be planted at one or more third-party worksites. For assignments to be specific and non-speculative is to say that it is precisely specified what duties the jobs will consist of and that the beneficiary's time working with the petitioner will not be subject to times reliant on the availability of another assignment.
Furthermore, all of the end-client services the beneficiary is hired to perform must be consistent with that of a specialty occupation as well as being properly supported by a corresponding Labor Condition Application (LCA).
In order to substantiate the presence of these necessary conditions, USCIS elaborates that corroborating evidence such as the following may be submitted:
- Actual work assignments such as technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures and funding documents.
- Signed copies of relevant contractual agreements between the petitioner and all other companies involved in the place(s) of the beneficiary's proposed placement if the petitioner has not directly contracted with the third-party location.
- Detailed copies of statements of work or work orders signed by an authorized official of the ultimate end-client company where the beneficiary will perform his or her work. This should identify the specific specialized duties the beneficiary will be involved in as well as their qualifications, the job's duration of the job and the hours to be worked.
- Letters from authorized officials at each ultimate end-client company where the beneficiary will be working. Any letter submitted should include information such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required, the job's duration, wages, hours worked and benefits as well as who will be supervising the beneficiary and any other related evidence.
Providing an Itinerary
USCIS is also issuing its clarified requirement that, in situations where the beneficiary will be performing work in more than one location, an itinerary must be provided in support of the H-1B petition. This document must include all the dates and locations of the services to be provided.
The itinerary may also be used to prove the specialty and non-speculative nature of the occupation and services to be provided by the beneficiary. To do so, the document should include:
Names and addresses of the ultimate employer(s).
The names, addresses and phone numbers of the locations where the services will be performed for the time specified.
Corroborating evidence for all claims and specifications of duties and locations to be worked at.
Proving the Employer-Employee Relationship
It is inherent that in third-party worker situations it becomes much more nebulous as to whether or not a true employer-employee relationship is maintained between the petitioner and the beneficiary, especially in greater chains of intermediaries and other such middlemen. It is in situations such as this that USCIS indicates the provision of these different contracts and agreements to be helpful in determining that the employer-employee relationship still exists, should its evaluation meet the burden of proof required of the petitioner.
Effects on the H-1B Visa's Validity Period and Extensions for Third Party Workers
Even as the burden of proof for demonstrating the above has become more far-reaching under the new guidance, the ramifications of the new policy memorandum still more grand in scope.
For instance, the petitioner must also demonstrate that the claims made within the new submitted evidence as to the specific duties and conditions of the beneficiary's employment will more likely than not continue throughout the duration of the validity period requested. At USCIS's discretion, it may even lower the given validity period from the H-1B's normal 3-year period to a length of time that only corresponds to the non-speculative work and ongoing employee-employer relationship evidenced within the petition's supporting documentation.
Furthermore, if a petitioner is filing for an H-1B visa extension for one of his or her workers that have been placed at third-party work sites, the must not only demonstrate the newly stringent requirements for the extension, but prove that the specified conditions were true for the duration of the prior period as well. Moreover, even if the H-1B extension petition by itself is approved, it is still possible that, if USCIS finds that the required conditions were not met for all of the prior period, the extension of stay request would be denied and the employee would have to leave the U.S. and apply for a visa at a U.S. consulate abroad.
It thus stands that the H-1B program has once again taken another blow, at least when it comes to petitions involving third-party worsite workers. This is just one in a line of attacks on the sometimes controversial program, and some may wonder if other visa categories offer more attractive routes for United States immigration, even for such foreign nationals that the H-1B visa was at one time tailored to.