In February, Attorney Stephanie Scarborough summarized the USCIS memo “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”
USCIS has limited H-1B validity based on the duration of service to be performed to the end-client. The memo confirms that USCIS will limit validity to the validity of the third-party contracts provided in the initial petition and any subsequent Request for Evidence. Employers should be prepared to receive short-term H-1B approvals as a result. This requirement will increase costs and burden on employers and could impact the valid status of the H-1B worker. Scarborough Law is starting to see the memo details come to fruition in the approval of limited validity H-1B petitions.
Be Advised – USCIS will limit petition validity to the validity of the third-party client contract.
Client has an urgent need for an employee to transfer to a new worksite and files an H-1B Amendment. However, at the time of filing the contract available for the new third-party end-client is a 90-day Statement of Work which is renewable before the end of the term. Client submits an H-1B petition requesting a three-year validity for the H-1B petition. In the past, USCIS would simply issue a Request For Evidence seeking proof that the project has been extended, the client would provide the extended Statement of Work and USCIS would approve the petition. Before the memo, USCIS might approve the petition for one-year, limiting the validity due to the short nature of the contract. After the Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites memo, USCIS issued a limited validity approval for one, single day (04/01/2018-04/01/2018). This is no April Fool’s joke, the limited validity resulted in the H-1B employee departing the United States while he awaited the filing of a new petition.
Information Technology and service companies who place H-1B workers at third-party worksites often receive multi-year Master Service Agreements but limited validity (30, 60, 90, 180 day) Statements of Work from end-clients. These service companies will now need to work with internal and end-client legal counsel to ensure that third-party, end-client contracts have an extended validity required for H-1B petitions.
About the Author Scarborough Law, LLC is a multidisciplinary practice born out of the founding partner’s frustrations with the delays and bureaucracy of traditional law firms. Scarborough Law, therefore, provides client-focused legal services aimed at recognizing the needs of their clients and delivering a superior personalized service.