Further to President Donald Trump’s Buy American and Hire American executive order, which directs the DHS to protect the interests of U.S. workers and make sure that there is no fraud, abuse, or circumvention of the laws, USCIS has issued a new policy memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”
The guidance clarifies its position on employees who are employed at “third-party” worksites. Previous guidance on this topic had been misinterpreted and misapplied, USCIS said, and the guidance supersedes and/or supplements earlier guidance.
USCIS recognizes that as vendors and subcontractors become involved in the employment relationship, it becomes “more difficult to assess” the bona fides of the case. Therefore, to maintain the integrity of the program, USCIS requires petitioners to show, by a preponderance of evidence, that beneficiaries who will work at third-party locations will be employed in a specialty occupation throughout the requested period and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the period.
To do this, more evidence will be required than before. In addition, that evidence must be specific and corroborated, including:
- Evidence of actual work assignments (i.e., technical documentation, cost-benefit analyses, brochures, and funding documents);
- Copies of contractual agreements between all parties involved in the assignment;
- Itineraries with the specific dates and locations of the services to be provided, along with location contact information; and
- Copies of detailed statements of work signed by the end-user client detailing the specialized duties, the qualifications, the duration of the assignment, and the hours to be worked, and a detailed description of who will supervise the beneficiary.
The more attenuated the relationship between the petitioner and the end-user client, the more important it is for the petitioner to trace how it will maintain the employer-employee relationship.
When it comes to extensions, the guidance makes clear that there will be no deference to prior adjudications. When filing an extension, the petitioner will have to provide evidence that the above requirements were met for the “entire prior approval period,” as well as for the upcoming period.
Gathering the necessary information for a third-party location H-1B petition can be challenging, especially because the petitioner may have to obtain specific documentation from the end-user client. If you have any questions about how to proceed with such a petition, please reach out to your Jackson Lewis attorney.