Feb 23, 2018
CLIENT ALERT: USCIS Heightens Requirements for H-1B Third-Party Placements
Joshua H. Rolf
On February 22, 2018, USCIS issued a Policy Memo outlining the documentary requirements for all H-1B Petitions involving third-party placements. Per USCIS, this Policy Memo is effective immediately and is another example of how the Trump Administration has taken unilateral steps to burden skilled foreign nationals seeking to work in the United States, as well as the entities that employ them – especially with respect to the H-1B Program.
Throughout the Policy Memo, USCIS clarifies that H-1B Employers submitting Petitions requesting third-party placements (whether directly or through an intermediary vendor) cannot provide simple attestations regarding the terms of employment alone. Instead, such employers must submit documentation to corroborate the length, duration, and nature of these placements. More specifically, the Policy Memo outlines the types evidence that must be presented to establish to USCIS, by the applicable evidentiary standard (preponderance of the evidence, or, "more likely than not"), that an H-1B Petition requesting a third-party placement satisfies the following H-1B requirements:
- Whether the H-1B Petitioner and H-1B Beneficiary will have the requisite employer-employee relationship for the entire duration requested; and
- Whether there will be specialty occupation work available to the H-1B Beneficiary for the entire duration requested.
Having submitted numerous H-1B Petitions involving third-party work placements, Green and Spiegel is well versed in the types of evidence that USCIS seeks to address these commonly scrutinized points. Indeed, in many ways the Policy Memo formalizes longstanding requirements for H-1B Petitions requesting third-party placements that were often addressed through Requests for Additional Evidence. The Policy Memo also memorializes USCIS’ approach to approve third-party placement Petitions for an abbreviated period of time when agreements between the H-1B Petitioner and third -party may not cover the full duration requested.
However, the Policy Memo does heighten and extend the documentary burden in terms of the evidence requested and/or suggested. Of note, USCIS explicitly states that a detailed itinerary is now required for all H-1B Petitions requesting third-party placements. According to the Policy Memo, USCIS adjudicators may deny (potentially without a Request for Evidence) such a case if it does not include an itinerary. Moreover, USCIS will add extra scrutiny to H-1B Extensions for Petitions including third-party placements. As such, we urge all clients employing H-1B workers at third-party sites to contact us immediately to discuss how this new guidance may affect them.
 Example – Company wants to place Employee at Business for a full three-year period, beginning February 24, 2018. Company and Business have an open-ended Master Services Agreement for this Project, with individual Statements of Work describing services, deliverables, and resources for different stages. It is common in Company and Business’ industry to execute Statements of Work for up-to-twelve-months, at the end of every year, and the current Statement of Work is valid through December 31, 2018. If Company submits Employee’s H-1B Petition right now, USCIS may only approve the Petition through December 31, 2018, instead of through February 23, 2021, due to Company’s ability to demonstrate the availability of specialty occupation work for Employee. In this situation, Company will need to file for an Extension and show an ongoing need for Employee.