8 March 2018
Category News Room
8 March 2018,
 0

Thoughts on New H-1B Third-Party Placement Memo

From: David Zaritzky Brown

What it says – its title “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” pretty much says it all. This memo finally addresses what was not previously published, but what we had been witnessing related to “Third-Party Worksites.” It’s “Purpose” statement is clear, this is now USCIS policy “relating to H-1B petitions filed for workers who will be employed at one of more third-party worksites.” Thus, this directive, issued on February 22, 2018 is directed to apply to employees at a third-party worksite, not someone who is working at two employer sites, or a home-based employment situation (with the exception of the itinerary requirement).

After the introduction there is a clear statement of purpose that USCIS exists to protect US workers in several ways – thus further underscoring where this policy originates, as it is a response to Trump’s “Buy American, Hire American.”

The memo essentially rescinds prior INS guidance from June, November and December of 1995 related to producing contracts, providing itineraries and what USCIS is entitled to receive to prove H-1B eligibility. The prior December 1995 memo on itineraries allowed employers to provide a “general statement of the alien’s proposed or possible employment” – as the regulation does not require that the employer provide the exact dates and places of employment. While the first two memos are overruled to the extent that they are contrary to this new memo, the itinerary memo is rescinded in full and this PM is now the Service statement on itineraries.

This memo also reaffirms the statements in the January 8, 2010 memo titled “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” insofar as they relate to proving an employment relationship and the submission of itineraries.

USCIS is trying to solve the problem it identifies as follows: “Scenarios involving a third-party worksite generally 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.”

What the new PM says about itineraries

In this section of the memo USCIS states that the regulation requires “petitioners to file an itinerary with a petition that requires services to be performed in more than one location.” The itinerary “must include the dates and locations of the services to be provided…There is no exemption from this regulatory requirement.” USCIS indicates that all applications with services to be performed in more than one location should detail when and where the beneficiary will be performing services, and “adjudicators may deny the petition if the petitioner fails to provide an itinerary.”

The memo goes on to suggest that providing even more detail in the itinerary will help support the H-1B petition by including if possible: the dates of each engagement; the names/addresses of employer; names/addresses and phone number of locations where services will be performed; and corroborating evidence for all of the above.

Based on the language of this memo the Service now wants an itinerary to be provided when there is more than one location of employment in the H-1B filing and that such an itinerary should provide at a minimum the dates and locations where someone is to be employed throughout the period requested, and that if insufficient information is provided the H-1B can be denied. Thus, the takeaway is that an itinerary is now a requirement. The only way to avoid this requirement is to have only one worksite.

What the new PM says about contracts

When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested on the petition. The petitioner needs to show:

  • there is a specific work assignment for the employee;
  • there is a valid LCA corresponding to that work location;
  • the actual work performed will be in a specialty occupation.

USCIS complains that employers often provided uncorroborated statements describing the role to be performed – and USCIS finds these are “insufficient to establish by a preponderance of the evidence that the H-1B beneficiary will actually perform specialty occupation work.” The memo goes on to suggest that contracts and work orders may substantiate a petitioner’s claim of work in a specialty occupation, or that a petitioner could provide:

  • The contract between the petitioner and its end client (note – this option appears above the enumerated bullets in the memo and this may be why it is apparently forgotten by the USCIS examiner as an option in some of the RFEs we’ve seen)
  • Evidence of actual work assignments – provide actual technical documents/ analysis/ tables/ schedules/ brochures, etc.
  • Copies of signed contracts between petitioner and all other companies involved (if there are several layers of contractors all must be provided), or copies of statements of work[i]
  • A letter signed by an official of the ultimate end-client that provides “a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties.”

In a footnote USCIS states the position that “submission of a combination of evidence, such as contractual agreements accompanied by detailed statements of work, provides a more comprehensive view of the work available.” This is because USCIS states that contracts just document the general obligation of the parties without providing specifics about the work to be performed, and thus a contract usually doesn’t support the notion that the employee will be employed in a specialty occupation. USCIS ultimately concludes “if the petitioner does not submit corroborating evidence or otherwise demonstrate that there is a specific work assignment for the H-1B beneficiary, USCIS may deny the petition.”

Thus it is important to meet the criteria outlined in this memo. And clearly this guidance seeks specificity and it wants it from a third party as it doesn’t appear to trust the Petitioner’s submissions anymore. Based on the foregoing the following combinations make the most sense:

  • A contract with the client (general terms), and a letter from the client confirming the duties to be performed, and qualifications to perform the duties, along with confirmation of salary/benefits/supervision, or;
  • A contract with the client (general terms) and a statement of work (SOW) that clearly outlines the duties to be performed with specificity, or;
  • A contract with the client which has clear information on the duties to be performed with specificity, or;
  • A contract with the client (general terms) and examples of the project work to be done such as tables, graphs, charts, reports, code, etc. to document the complexity of the work to be performed.

While this guidance is new, we expect there to be some variability in decision-making, but offering the above combinations should be sufficient to help demonstrate that the agreement in place is specific enough to ensure the employee is performing specialty occupation work.

What the PM says about employer-employee relationship

When an employee is at a third-party worksite, the employer must maintain “an employer-employee relationship with the beneficiary for the duration of the requested validity period.” The memo confirms that evaluating the chain of contracts between petitioner and third-party may help USCIS determine whether the required employer-employee relationship exists. It also tells the reader to apply the guidance established in the 2010 Service memo from Neufeld which highlights the aspects of control that determine whether someone is properly an employee of the Petitioner or of the end client. The criteria related to proving the employer/employee relationship includes: supervision, supplying tools, determining work hours, payroll and taxes, benefits provided, etc. Ideally any contract related to a third-party worksite should clearly specify that the contracted staff are employees of the Petitioner.

What the PM says about specialty occupations

When placed at a 3rd party worksite – USCIS must establish that the beneficiary will be employed in a specialty occupation. They interpret this as meaning the petitioner has “specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.” This in turn then relates back to the contract/SOW or other evidence to show that the work being done is detailed and clearly in a specialty occupation. The enemy in this situation is general statements of work or purpose as they don’t provide enough comfort to USCIS that specific specialty work will be completed.

Validity period to be established

USCIS states that we must establish the above elements will more likely than not continue to exist throughout the duration of the requested H-1B validity period to receive a 3 year approval. However, USCIS will generally limit the approval to the length of time demonstrated that the beneficiary will be placed in non-speculative work and employer-employee relationship continues, as documented by evidence. This statement is problematic and is contrary to their prior statements suggesting that Petitioners should be awarded a one-year approval in situations where the Petitioner cannot document contracts for the next three years at the time of filing. While those earlier comments are not specifically rescinded by the new PM, they were not written in a PM format and appear to be overruled/looked as a result of this new trend.

Extensions

USCIS will hold employers accountable to proving that they met any prior statements regarding contracts, worksites and itineraries, so those employers who either fail to notify USCIS of a key move or those who don’t adhere to the original schedule face the prospect of being challenged and having the extension H-1B petition denied, either in whole or in part.

What does this memo mean for clients?

We obviously want to limit the impact as much as possible as the more this memo applies, the more power/discretion exists in the adjudicator’s hands.

The first/best way is to avoid having multiple worksites. If you have only one worksite and it is managed by the Petitioner, then this memo doesn’t apply.

If you have only one worksite, and it is a remote location where the employee lives, again this memo doesn’t apply.

If you have only one worksite, and it is the client site, then we still need to address issues of control and sufficiency of specialty occupation work for the duration of the period requested.

If you have more than one location, but there is no third-party site, where possible we should consider only placing the person at one site to avoid the itinerary requirement. The worksite can be limited to one location so long as the beneficiary doesn’t work more than 60 days off-site at another location, or put differently that is a full week of work per month at another location.

For those employers who are placing the individual at the client site the employer should first consider whether that is required on a full-time basis. Again, if the employee can work from the employer’s worksite for the majority of time and visit once a month with the client, the Petition could disclose just the employer’s worksite, thus avoiding significant disclosure and difficulty with USCIS.

Ultimately, there will be those who will work at third-party worksites – and those filings must meet the itinerary, control, and specific specialty occupation standards highlighted above. The best practice in this situation is to have an itinerary that clearly indicates the dates the employee will be at each worksite, to provide all available evidence of control, and to provide one of the above-noted combinations of contract/SOW/client letter/other evidence, to ensure USCIS will reach a reasonable conclusion about the availability of specialty occupation work.

 

[i] The memo specifies that the SOW should “detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked”

 

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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