Immigration Blogs

USCIS released a new H-1B policy memo on Feb 22, 2018 related to third-party work sites.

The memo is to be used by all USCIS officers adjudicating H-1B petitions.  What are the consequences of this memo?

A June 6, 1995 memo on contracts involving H-1B petitions and a November 13, 1995, memo on supporting documents only required adjudicators to request third-party contracts on a case by case basis, and that end-client contracts should not be requested unless an officer could articulate a specific need for end-client contacts. The new memo appears to require officers to request third-party contracts in every case, rather than on a case by case basis.

The memo instructs officers to require petitioners placing beneficiary’s at third-party work sites to provide evidence of the availability of specific specialty occupation work.   The memo states that uncorroborated statements from petitioners are insufficient evidence and that a petition may be denied if corroborating evidence is not provided. The memo states

” Contractual agreements that merely set forth the general obligations of the parties to the agreement, and that do not provide specific information pertaining to the actual work to be performed, may be insufficient to establish that the beneficiary will be employed in a specialty occupation.

The Memo imposes a requirement for both a contract and either a letter and/or work order from end-client that provides:

•  A detailed description of the specialized job duties;
• The qualifications required for the position;
• Duration of job;
• The hours to be worked
• salary or wage paid;
• benefits
• Detailed description of who will supervise the Beneficiary

Because the memo requires evidence of the availability of specialty occupation work for the entire duration of time requested on the H-1B  Petitioner’s may expect petitions to be only approved for the duration of time an end-client specifies in a letter or contract and work order.

The Memo requires signed contracts from all parties in the chain of contracts. We can expect to see USCIS scrutinizing the contracts and utilizing terms within contracts in the chain to dispute the Petitioner’s right to control. This means attorneys and petitioners need to pay careful attention to the terms of the chain of contracts.

The new memo rescinds a December 29, 1995 memo on the interpretation of the term Itinerary, that stated a general statement of possible employment could be provided in place of exact dates and places. This could have the consequence of Petitioners having to provide exact dates for each place of employment listed on an LCA. It has been the common practice for many attorneys and Petitioner’s to list the headquarters of the Petitioner in addition to a third party client’s location, so that the beneficiary may report to the petitioner for training etc or to engage the Beneficiary on in-house work in between projects located at third-party sites. Since such visits to the Petitioner’s headquarters are unscheduled events it would not be possible to list exact dates in an itinerary and the Petitioner may now be required to not list their own location on Petitions. It is also often the case that a Petitioner seeks to provide the Beneficiary’s home address as one of the work sites locations because beneficiaries are often allowed to work from home, again the times when a beneficiary may work from a home location are not often scheduled, so a Petitioner may have to leave the beneficiary’s home location out of the LCA. The consequence of the memo could be that Petitioners may no longer be able to list more than one worksite on an LCA unless they have predetermined the exact dates at which the beneficiary will be at each location. Although the Memo only states that USCIS can deny a petition for not providing an itinerary in cases where there is more that one work-site, and that there is no regulatory requirement to provide an itinerary if there is only one work site, the memo seems to indicate that it would be advisable to provide an itinerary even if there is only one work site. The itinerary must contain:

• The dates of each engagement;
• The names and addresses of end-clients;
• The names, complete addresses of work-sites;
• Telephone numbers of work sites.

The memo also indicates that if a Petitioner files a Petition to extend status the extension of stay will be denied and the Petition will only be approvable for consular process unless the Petitioner provides evidence:

This memo could have the effect of rulemaking without going through the notice and comment procedures, because the outcome of the memo may be that an H-1B petition case can no longer be approved without a third party contract the end-client is party to, a work order and a letter even if there is sufficient other evidence on the preponderance of evidence standard to indicate there is sufficient specialty occupation work to engage the beneficiary The memo indicates that extensive scrutiny of Petitioners without direct contracts will be the policy of this administration. This could result in the demise of sub-vendors/contractors, who are not be able to obtain the contract between the prime vendor and an end-client. It could also lead to mergers and monopolies in the IT consulting industry where very large IT consulting companies are the only ones who are able to attract H-1B employees because they are the only ones who tend to have the direct contracts with clients that may become necessary to obtain an approval of an H-1B petition.  Such mergers that provide efficiencies of scale can be expected to come with job loses.