Another day, another policy change from USCIS. This time, USCIS published a policy memorandum clarifying existing regulatory requirements relating to existing H-1B petitions for those employees working at third party locations. Effective as of February 22, 2018, the policy states that in order for H-1B petitions that involve a third party worksite to be approved, petitioners must show by a preponderance of evidence:
- 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.
These two requirements are not new. What is new, or rather, what is now being scrutinized by USCIS is that:
- Petitioners must demonstrate that they have specific, non speculative (i.e., a readily ascertainable project) in a specialty occupation for the Beneficiary for the entire time requested on the petition. What this means is that even though the Petitioner usually requests the maximum three years on the application, if the project shows that it will be completed in 1 year, then the H-1B will only be granted for this 1 year timeframe.
- At a minimum, employers must provide contracts, work orders and work itineraries for employees who work at third party locations.
- Additional evidence that may corroborate a petition include technical documentation, marketing or cost benefit analysis, or brochures;
- Detailed statement of work or work orders signed by an authorized official of the end client, that details the specific duties the Beneficiary will perform, duration of the job, and the hours to be worked.
- Itineraries MUST include the dates and locations of the services to be provided. If services are to be performed in more than one location, an itinerary for each location showing the dates of work performed and what services will be provided at each location must be included. Most importantly: USCIS may deny the petition at the initial stage if the itinerary is not provided; i.e., they may not send an RFE that would allow a petitioner to rectify the oversight.
It is also important to note that the policy clarification also applies to H-1B extensions. Petitioners must show that H-1B requirements have all been met during the course of past employment with the same petitioner; otherwise the extension may be denied.
With this policy memorandum, clearly USCIS is showing that it will be scrutinizing petitions and will not hesitate to deny a petition. If you are filing a new H-1B petition, or will extend an existing petition, it is incumbent that you call the Paturi Law Firm to help you navigate these treacherous waters.