The New Policy Memorandum Aims to Ensure that USCIS Officers are Correctly and Strictly Interpreting the Existing Regulations for H-1B Petitions Involving Third-Party Worksites
On February 22, 2018, the USCIS released a new policy memorandum in an attempt to ensure that USCIS Officers are correctly and strictly interpreting the existing Contracts and Itineraries regulations governing H-1B petitions that seek to place beneficiaries at one or more third-party work locations.
The USCIS stated that they have published this memorandum in an attempt to “protect the wages and working conditions of both U.S. and H-1B nonimmigrant workers” and prevent abuse of the H-1B visa classification, which they believe is more prevalent in H-1B petitions involving third-party work locations.
The memorandum makes it clear that a Petitioner must show that they have “specific and non-speculative” specialty occupation work for the entire requested validity period and that the Petitioner will maintain an employer-employee relationship for the entire validity period, as well.
If a Petitioner makes statements (regarding Specialty Occupation work and the Employer-Employee Relationship) that are uncorroborated by detailed contracts (SOWs) and itineraries of service, or other specific evidence, the USCIS is likely to issue a denial. Additionally, the USCIS has stated that broad contracts lacking details of specific work to be performed (such as MSAs), may be deemed insufficient if submitted without a more detailed SOW or Work Order.
Additionally, in order to demonstrate that Specialty Occupation work is available at a third-party location, the USCIS also expects to receive confirmation from the end-client that they require a Bachelor’s degree in a specific specialty to perform the proffered job duties, even though the end-client is not the Beneficiary’s actual employer. In its policy memorandum, the USCIS has referenced Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000), where this requirement has been set as precedent.
In its policy memorandum, the USCIS also states that any petition with more than one work location must give a detailed itinerary listing dates and locations of work to be performed. Although itineraries are only required for H-1B petitions with more than one work location, the USCIS has also stated that providing detailed itineraries for H-1B petitions involving only one third-party work-site may be helpful in receiving a positive adjudication.
Overall, the new policy memorandum does not make any changes to the interpretation of current regulations or precedent. The policy memorandum seeks to ensure that USCIS Officers understand the strict regulations imposed on H-1B Petitions Involving Third-Party Work-sites and adjudicate accordingly.
In practice, the USCIS has still approved some H-1B petitions involving third-party work-sites without the required, detailed contracts and itineraries, but it is likely, with the new policy memorandum, that H-1B petitions involving third-party work-sites that are lacking detailed end-client documentation and detailed itineraries will be denied.
A final section of the memorandum, regarding H-1B extensions, states that in an extension petition, the petitioner “should also establish that the H-1B requirements have been met for the entire prior approval period,” which includes demonstrating that “the beneficiary worked in the specialty occupation, that he or she was paid the required wage, and that the employer maintained the right to control the beneficiary’s employment.” At this time, it is not clear what this requirement will entail for Petitioners, but it may make obtaining an H-1B extension more difficult and burdensome.
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