Yesterday, USCIS issued a new policy memo that updates previous guidance related to H-1B placements at third-party worksites. This involves H-1B petitions where Mr. Worker is employed by and sponsored by Company A, but assigned to work at Company B through a contract between Company A and B. This is a relatively common business model and nothing new, but it creates a higher potential for abuse when H-1B workers are involved. There are several memos that have been issued on the topic over the years to provide employers and adjudicators with a better understanding of what additional documents may be required for H-1B approval. Most recently, the Neufield memo was issued in 2010 and re-confirmed that while an H-1B worker may be placed at a third-party worksite, the employer-employee relationship must be maintained at all times. The memo set forth several factors to be used in determining whether the employer-employee relationship requirement would be satisfied. This memo formed the basis for the usual Requests for Evidence that consulting companies receive requesting itinerary, employment agreement, offer letter, contracts, statements of work, position description, performance review process, and organizational charts.
The new memo issued yesterday further expands the documents that will be required to obtain H-1B approval for work involving third-party placements.
Specifically, USCIS adjudicators will now expect to see:
Evidence of actual work assignments – technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents
Copies of contracts between the petitioner and ALL companies involved when there is a vendor in between the petitioner and the end client
Copies of detailed statements of work from the ultimate end-client company
Letter from the ultimate end-client company
Further, even in cases where an itinerary is not required by the regulations, USCIS suggests that petitioners still provide a complete itinerary and that it now also include the names, addresses (including floor, suite, and office) and telephone number of the locations where the services will be performed.
Also, the memo informs petitioners that approvals may be issued for a shorter time than requested if the supporting documents do not indicate that work will be available for the full period requested.
Lastly, the memo instructs adjudicators to look more closely into whether the terms and conditions of the previously approved petition were met and they may approve the petition without a new I-94 in the event that they were not. This would require the worker to exit the U.S. and apply for a new visa stamp at a consulate before continuing work with the employer.
While the memo largely confirms what we were already seeing in terms of the latest adjudication trends, it will continue to be more difficult for third-party placements to obtain H-1B approval. In addition, USCIS’ announcement of a new mission statement and no longer referring to applicants and petitioners as “customers” gives us a good indication that things will not get easier any time soon.
You can find the new policy memo at: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf