USCIS Issues New Policy Memo on Third Party Placement for H-1B Petitioners

This week the United States Citizenship and Immigration Service (USCIS) issued a new Policy Memorandum (PM) titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” which increases the amount and type of documentation that must be submitted in support of H-1B petitions involving third-party worksite placement (H-1B petitions in which the the H-1B beneficiary will be employed at the worksite of a third-party client).  Common examples of such placements include consultants placed at a client site in order to provide consulting services, certain staffing agencies/IT service vendors, and some subcontractor arrangements.

The PM supersedes prior policy memoranda on this issue and clarifies and consolidates the documentary requirements for H-1B petitioners submitting petitions for third-party placement. The PM makes clear that such petitions must include additional documentation, namely contracts and itineraries, showing that the beneficiary will be employed in a specialty occupation and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the requested petition validity period.

What This Means

As an initial matter, the PM acknowledges that third-party placement is a “legitimate and frequently used business model” but states that such arrangements make it more difficult to assess whether the petitioner has established that the beneficiary will actually be employed in a specialty occupation or that the requisite employer-employee relationship will exist. The PM notes further that the difficulty of such assessments increases where there are one or more intermediary vendors between the petitioner and the end-client.

As a result of USCIS’s concerns about fraud, abuse, and other employer violations that could result from these types of employment relationships, the PM provides clarifying guidance on the contracts and itineraries that must be submitted with H-1B petitions involving third-party placement.

1. Contracts Must Demonstrate Both Specialty Occupation Employment and the Existence of an Employer-Employee Relationship

The PM states that contracts must be submitted in support of H-1B third-party placement petitions and that they must contain “specific, non-speculative qualifying assignments in a specialty occupation” for the beneficiary for the entire requested petition validity period. The PM confirms that, despite past practices, uncorroborated statements attesting to qualifying assignments alone are insufficient and provides examples of acceptable corroborating evidence, which include contracts, work orders, evidence of actual work assignments, etc. The PM further states that contracts should make clear the existence of a qualifying employer-employee relationship between the petitioner and the beneficiary which, for more attenuated client placements, may involve submitting a chain of contracts/legal agreements between the petitioner and the ultimate third-party worksite.

2. Itineraries Must be Submitted and Must Demonstrate With Specificity Sufficient Specialty Occupation Employment

The PM rescinds and supersedes a 1995 USCIS Policy Memorandum regarding H-1B itineraries for third-party placement, which permitted petitioners to submit general statements regarding the beneficiary’s proposed or possible employment without exact dates or work locations. The new PM now requires that an itinerary be submitted for all H-1B petitions involving third-party placements with dates and locations of services to be provided.  The PM further clarifies that itineraries should contain a sufficient level of specificity, such as dates, addresses, contact information, etc. for third-party sites as well as corroborating primary evidence of this information to satisfy USCIS that there is specific, non-speculative specialty occupation work available for the entire requested petition validity period.

Things to Keep in Mind

The PM notes that while H-1B petitions may be granted for a maximum of three (3) years, USCIS will limit the validity period to a shorter duration where the evidence submitted does not sufficiently document specific, non-speculative specialty occupation work for the full three-year period.

In addition, the PM states that Petitioners requesting an H-1B extension for third-party placement must document that the above third-party placement requirements were met for the entire prior period of petition approval.  Where such documentation is not provided or is insufficient, USCIS may approve the underlying H-1B classification but deny the request for an extension of stay, meaning the beneficiary will be required to travel and potentially apply for a new H-1B visa stamp prior to resuming H-1B employment.

How to Prepare

Petitioners seeking new H-1B petitions involving third-party worksite placement should be prepared to submit detailed contracts and itineraries in compliance with the above.  Where petitioners do not have a full three-years of work lined up for the beneficiary, it may be necessary to request a shorter petition validity period and plan to file several extension for the H-1B beneficiary as additional work is secured.

Petitioners seeking extensions for existing beneficiaries who are placed at third-party worksites should be prepared to thoroughly document, through contracts and itineraries, that specialty occupation work remained available for the entire prior petition validity period and that the petitioner maintained the required employer-employee relationship with the beneficiary throughout this period.  Where such documentation is not available, Petitioners and beneficiaries should be prepared that extension of stay requests may not be granted and the beneficiary may need to travel and apply for a new H-1B visa stamp before resuming H-1B employment.

Petitioners filing H-1B petitions that do not involve placement at any third-party worksites should address this point affirmatively in an effort to avoid requests for evidence on this issue.

D&S will continue to monitor the situation as USCIS begins adjudicating H-1B petitions under the new PM and provide updates regarding adjudication trends as they become available.