USCIS: H-1B Third-Party Worksites Memo

by Joseph McKeown

Last month, US Citizenship & Immigration Services (USCIS) released a memo with guidance for H-1B petitions where the beneficiary will work at one or more third-party work sites. While many H-1B holders perform their work at the petitioner’s main address or at one of the petitioner’s locations, in certain cases the employee may work at one or more third-party worksites and perform their work for clients of the petitioner. On February 22, 2018, USCIS released the memo, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” to address these types of situations and specify what additional documentation USCIS will require. Significantly, the memo notes that USCIS will require itineraries when the beneficiary will work at more than one worksite and that USCIS may not grant the full three years of the H-1B validity time if the petitioner fails to demonstrate that the employee will have specific and non-speculative work as well as maintain an employer-employee relationship throughout the requested H-1B validity time.

USCIS says they are releasing this guidance to align with President Trump’s Buy American and Hire American executive order and the “directive to protect the interests of U.S. workers.” USCIS claims: “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.”

The new guidance, which is meant to be read along with the previously-issued “Neufeld Memo” (officially titled “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”) says that in order for H-1B petitions with a third-party worksite to be approved, the petitioner must show by a “preponderance of evidence” that the beneficiary will be employed in a specialty occupation and that the employer will maintain the employer-employee relationship for the entire validity period.

While the memo acknowledges that third-party worksite arrangements may be a “legitimate and frequently used business model,” the memo claims “significant employer violations”—including employers paying less than the required wage, benching employees in between projects, and having employees perform non-specialty work—occur more frequently with these types of work arrangements. When the employee will work at one or more third-party worksites, the petitioner must show that:

  • They have a "specific work assignment" for the beneficiary;

  • The petition has a Labor Condition Application (LCA) corresponding to such work; and

  • The work performed by the H-1B beneficiary will be in a "specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services."

To show that the employee will have specific and non-speculative work assignments and perform a specialty occupation, a combination of the following evidence may be sufficient:

  • contractual agreements and specific detailed statements of work to be done, as compared to general statements;
  • actual work assignments, including technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
  • signed contracts and agreements between the petitioner and any companies, assuming the petitioner is not directly contracted with the third-party worksite;  and
  • detailed statements of work or work orders including duties the beneficiary will perform, qualifications required, duration of job, and hours to be worked signed by an authorized official at the end-client company where beneficiary will work.

Importantly, since the employer-employee relationship may be confused or extenuated when there are vendors, brokers, or other intermediaries, petitioners should provide contracts or chain of contracts as evidence that the employer will maintain an employer-employee relationship with the foreign national, despite whatever third-party worksite where the beneficiary will be located.

Additionally, the memo points out that an “itinerary as a regulatory requirement” should be submitted for all petitions where the work will be performed in more than one location. The itinerary should include specific dates as well as names, addresses, and telephone numbers of work sites, as compared to general statements. The itinerary should also serve to demonstrate that the work is specific and non-speculative in a specialty occupation for entire duration of the time on the petition. If the petitioner does not provide all the necessary documentation and demonstrate that the specialized professional employment will continue throughout the requested H-1B validity time, the petition may not be granted for the full three years. All these above requirements are applicable to H-1B extensions as well.

It is likely that this USCIS memo will result in more Requests for Evidence and it could dissuade companies from filing H-1B petitions, or make it harder for H-1B holders to file for Green Cards, if their H-1B validity periods are shortened. There is also a possibility that the stringent itinerary requirement may extend to other visa categories. Attorney Sara Blackwell, however, who advocates for American workers who claim to have been “replaced” by foreign workers, welcomes the increased scrutiny on H-1B petitions. She tells CNN: "Since there is a limited number of H-1B visas it is important that those visa workers go where they are legitimately needed." Robert Cormier, a retired federal law enforcement criminal investigator, says the memo could prevent fraud in the H-1B program. “That could change the game completely,” he tells CNN. 

Other immigration practitioners and those in the IT industry have criticized the memo. R. Chandrasekhar, president of the IT trade association Nasscom, says the memo is part of a broad attack on the H-1B program. “The implication of this is there will be a lot more paperwork,” he tells The Times of India. “A series of executive orders have been coming out. Each one by itself may not be much, but they have cumulatively added up to making it much more difficult and onerous for companies to use the H-1B route.”

Attorney Cyrus Mehta says the additional documentation requests are “draconian” and “extremely onerous” and in some cases contradictory to USCIS guidance and says the memo unfairly targets legitimate US business practices as well as Indian nationals, who make up a large percentage of H-1B visa holders. He writes: “While most would not want to openly admit it, one wonders whether this business model would be so maligned and attacked if it was developed in a Scandinavian country rather than India.” He goes on: “The fact that the USCIS seeks to restrict this development, rather than to nurture it not only reflects the chronically insular character of U.S. immigration policy but the new siege mentality under the Trump administration that has deprived the nation and its economic system of the capacity for job creation and growth that would otherwise benefit us all.”