Changes to Filing Requirements Effecting Third-Party Placement of H-1B Workers

By Rebecca Sigmund and John Hill

Through its latest policy memorandum, issued earlier this year, U.S. Citizenship and Immigration Services (USCIS) has formalized additional requirements for H-1B petitions involving off-site employment. USCIS states that the additional requirements placed on employers is intended to combat fraud and abuse due to an increased rate of H-1B program violations with off-site employees. South Carolina employers assigning H-1B employees to third-party worksites should take heed and prepare to meet the revised standards in this policy memorandum.

In furtherance of the current administration’s “Buy American/Hire American” executive order, USCIS’s February 2018 policy memorandum mandates that employers provide additional documentary evidence (including detailed contracts and itineraries) in connection with H-1B employees who will provide services at third-party worksites. USCIS appears to apply a novel interpretation of the immigration regulations, essentially treating petitioners who assign H-1B employees to client worksites as “agents” rather than “employers” for evidentiary purposes by imposing a more burdensome documentary standard for any off-site H-1B employment. However, an employer/employee relationship between the petitioning employer and the H-1B worker is still mandatory and additional evidence regarding this relationship may be required as well.

Further, the additional documentary evidence must support the need for the requested services for the entire period requested in the employer’s petition.  Although H-1B employers may request up to three years, USCIS will generally limit the petition approval period to the length of time shown by the evidence submitted. Statements of work or letters signed by third-party clients should therefore include concrete details describing the actual work to be performed, such as the employee’s duties, the qualifications required, and the duration of the job. As the employer-employee relationship grows more attenuated through the involvement of intermediaries, the employer must specifically trace how it will maintain the right to control the employee’s work at the assigned worksites, which may include contracts between the petitioner and all companies involved with the employee working off-site.

The end result is a more burdensome standard for all H-1B petitions involving a third-party worksite, requiring employers to file detailed itineraries documenting specifics for each worksite. While prior USCIS guidance has suggested that detailed itineraries are not necessary when an H-1B employee will work at multiple worksites, the February 2018 policy memo changes this view opining that the immigration regulations require employers to submit itineraries listing the dates and locations of such employment. The memo provides that even when an employee is assigned to only one client worksite, the employer must nonetheless submit an itinerary with the same information as required for multiple worksites. Since USCIS may deny extension requests for failure to comply with an original petition’s terms and conditions, employers should maintain documentation that clearly demonstrates such compliance and timely file H-1B amendment petitions for any worksite changes as needed.

South Carolina employers who are in fact third-party site clients may be required to support a vendor’s request for this additional documentation in the event that an H-1B worker is assigned to their worksite.  This may involve detailed support letters confirming the vendor relationship and the assignment of the H-1B worker, as well as amendments to the vendor contract.  If the vendor fails to provide the requisite documentation, its H-1B petition will likely be denied, and the client will lose that H-1B contract worker assigned to their worksite. Still, any employer who is a third-party site client should carefully review any supportive documentation provided by or to the vendor.

Employers who are either a vendor or a third-party site client will be impacted by this clarifying policy memorandum if the assigned worker holds H-1B status.  Further changes to the H-1B program are expected in the coming years. Stay tuned for more news on this front.

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone. 

Contact Rebecca Sigmund at [email protected] or John Hill at [email protected].