On Thursday February 22nd, The USCIS issued its latest Policy Memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.” The Memorandum largely confirms our firm’s warnings over the last year regarding the stricter adjudication of H-1B petitions involving 3rd party worksites: there are no surprises in this memorandum.
The Memorandum was issued to provide “clarifying guidance regarding the contracts and itineraries that Petitioners submit in third-party worksite cases.”
The Memorandum provides this guidance through 6 points:
- Contracts as evidence to demonstrate the Beneficiary will be employed in a specialty occupation.
The USCIS confirms that, in addition to contracts between the Petitioner and its client for a 3rd party placement, the Petitioner is able to demonstrate the actual work assignment(s) in a specialty occupation by providing a combination of the following or comparable types of evidence:
- Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
- Copies of relevant, signed contractual agreements between the Petitioner and all other companies involved in the Beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite;
- Copies of detailed statements of work or work order signed by an authorized official of the ultimate end-client company where the work will actually be performed by the Beneficiary. The statement 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.
- A letter signed by an authorized official of each ultimate end-client company where the Beneficiary will actually work. The letter should provide information, such as a detailed description of 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, and any other related evidence.
The Memorandum notes that contractual agreements alone are not enough, as they “merely set for the general obligations of the parties to the agreement and do not provide specific information pertaining to the actual work to be performed.”
- Contracts as evidence to demonstrate the employer will maintain an employer-employee relationship with the Beneficiary for the duration of the requested validity period.
This Memorandum is to be read as a complement to the Employer-Employee memo, “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (January 8, 2010). The Memorandum highlight that, as the relationship between the Petitioner and Beneficiary becomes more attenuated through vendors, there is a greater need for the Petitioner to specifically trace how it will maintain an employer-employee relationship with the Beneficiary.
- Itinerary as a regulatory requirement.
To execute point #2 above, the Memorandum highlights that itineraries are required by regulation (8 CFR 214.2(h)(2)(i)(B). Adjudicators may deny a petition if the Petitioner fails to provide an itinerary, either with the initial petition, or in response to a request for evidence.
The USCIS notes that, “Although a petitioner may always refuse to submit confidential commercial information if it is deemed too sensitive, the Petitioner must also satisfy the burden of proof and runs the risk of a denial.”
- Itinerary as evidence to demonstrate the Beneficiary will be employed in a specialty occupation
The Petitioner must demonstrate that it has “specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition.” For all documents, the following information should align across all documentation:
- The dates of each service or engagement;
- The names and addresses of the ultimate employer;
- The names, addresses, and telephone number of the locations where the services will be performed for the period of time requested;
- Corroborating evidence for all of the above.
- Validity period of approved petition
The Memorandum confirms that the USCIS will in its discretion limit or truncate the approval period to the length of time that is established in the Petition documents.
As it is always required, the Petitioner must establish that the H-1B requirements have been met for the entire period prior to the approval period. This includes:
- The Beneficiary worked in a specialty occupation;
- That he or she was paid the required wage; and
- That the employer maintained the right to control the Beneficiary’s employment.
The Memorandum largely confirms our recommendations for H-1B Petitioner involving third-party worksites, namely, that:
- The USCIS is looking at the full chain of right to control documentation much more closely;
- Contracts must be fully executed (MSAs and SOWs/POs must be signed and dated by both parties);
- A full set of evidence documenting the chain of contracts (i.e., MSA, PO/SOW, Middle Vendor and preferred middle vendor letters as applicable, and most importantly, end client letters) are required for cases to be approvable;
- The details of the placement must align across all the letters submitted in support of the petition. These details include:
- The duration requested;
- The job duties;
- That the position requires at minimum a bachelor’s degree in a directly related field;
- Acknowledgement across the letters that the Petitioner is the employer;
- Signature with contact information of person who has the authority to confirm the placement and provide the letter(s).
These trends are not new and should not be taken as a change in policy. We strongly advise having conversations with your vendors and clients about these requirements to ensure that the right details are documented in the right to control documentation submitted with your H-1B petitions.
Please contact our office should you have any questions regarding the Memorandum.