On Thursday, USCIS published a policy memorandum clarifying the policy on H-1B-related third-party worksite petitions. The policy makes clear that USCIS will request supporting documentation to prove the legitimacy of the employee-employer relationship while at a third-party worksite. Failure to abide by these new policies will result in a case being denied. Unlike prior years, the USCIS will not be making exceptions on employers who fail to firmly document the ultimate end-client placement.
Policy clarified for third-party worksite petitions
In the supporting documentation provided to USCIS, employers are obligated to include contracts and itineraries legitimizing the relationship with the H-1B employee working at a third-party worksite. If there are mid-vendors between you and the ultimate end-client, those relationships must be documented as well.
H-1B approval relies on evidence
The policy memorandum goes on to clarify that, in order for H-1B third-party worksite petitions to be approved, employers must provide a “preponderance of evidence” proving that employment is for a speciality occupation only. It also clarifies that the relationship between the petitioner and the employee must continue throughout the duration of the requested time at the third-party worksite.
USCIS requires non-speculative work
Employers must show that the assignments for these employees is “specific and non-speculative” and must cover the entire duration of the requested time. If the petition does not include assignments of this nature that cover the entire three-year stay period allowance for an H-1B employee, it will only be approved for the duration of the non-speculative assignments. For example, if you are only able to show that you have six months of available work with the end-client, the USCIS is likely to only approve the petition for six months (even if you have a long-standing relationship with the client where such contracts are typically renewed).
Requirements apply to extensions
Employers must now also show that they have abided by the terms of a H-1B petition when filing an extension. This includes showing the H-1B worker was paid the salary mentioned in his or her last H-1B petition and that you maintained an employer-employee relationship with the employee while he or she was at the end client.
Policy aligned with Trump executive order
This clarification is in full alignment with President Trump’s Buy American, Hire American executive order, issued in April 2017, which stresses the need for immigration agencies to protect the jobs of American citizens and root out loopholes for foreign national workers.
Are you ready for this year’s H-1B cap season? Watch the first part of our H-1B Cap Prep Series to learn how to prepare for FY 2020 H-1B Cap Season.
Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.