USCIS recently issued a new policy memorandum entitled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. This memorandum summarized the primary requirements for establishing eligibility for an H-1B petition involving a third-party worksite, or end-client worksite, namely:
- The beneficiary will be employed in a specialty occupation and
- The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
Furthermore, USCIS acknowledged that while it is possible for third-party arrangements to be legitimate, it is difficult to ascertain whether or not the H-1B employment meets the second criteria above i.e. that the employer maintains the right to control over the beneficiary placed at an end-client worksite. Therefore, USCIS now requires that additional corroborating evidence be submitted in H-1B petitions utilizing third-party worksites. The evidence which may be submitted includes, but is not limited to:
- Signed contractual agreements between the petitioner and its end-client, including any relevant mid-client companies, for that worksite;
- Evidence of actual work assignments such as technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
- Statements of Work or Work Orders signed by an authorized official of the ultimate end-client company detailing the duties the beneficiary will actually perform, the qualifications 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 the ultimate end-client company which includes a detailed description of the beneficiary’s job duties, the qualifications required to perform the job duties, salary paid, benefits, a description of who will supervise the beneficiary, the duration of the job, and the hours to be worked.
Additionally, USCIS clarified the regulatory requirement that petitioners file an itinerary with an H-1B petition that describes the dates and locations of the services to be provided, the name and address of the employer, as well as the name and address of the worksite where the services will actually be performed, as per 8 CFR § 214.2(h)(2)(i)(B).
Finally, with regards to H-1B extension petitions, USCIS has clarified that the petitioner should establish that the H-1B requirements outlined above have been met for the entire prior approval period. This includes establishing that the beneficiary worked in a specialty occupation and was paid the required minimum wage, and that the employer maintained the right to control the beneficiary’s employment. If, for some reason, the petitioner did not comply with all of the terms and conditions of the original H-1B petition and did not file an H-1B amendment petition in a timely manner, then USCIS may have eligibility concerns about a subsequent extension petition.
If you are an employer looking to file an H-1B petition on behalf of a beneficiary who will be working at an end-client worksite, please contact VERMA Law Firm to speak with an experienced immigration attorney about your situation.