On February 22, 2018 USCIS (United Sates Citizenship and Immigration Services) issued a Contracts and Itineraries Requirements memo for H-1B Petitions Involving Third-Party Worksites under the guise of combatting H-1B abuses. In reality, the memo details the current USCIS policy to actively narrow the use of the H-1B and takes direct aim on H-1B workers at third-party worksites. As is typical of recent USCIS actions, the memo aligns USCIS policies with the anti-immigration Buy American and Hire American Executive Order of the Trump administration.
The memo clearly outlines the USCIS agenda against the H-1B program stating “USCIS recognizes that significant employer violations—such as paying less than the required wage, benching employees (not paying workers the required wage while they wait for projects or work) and having employees perform non-specialty occupation jobs—may be more likely to occur when petitioners place employees at third-party worksites. Therefore, to protect the wages and working conditions of both U.S. and H-1B nonimmigrant workers and prevent fraud or abuse, USCIS policy should ensure that officers properly interpret and apply the statutory and regulatory requirements that apply to H-1B petitions involving third-party worksites.”
H-1B petitions are adjudicated under the preponderance of the evidence standard. Thus, the documentation provided should show that it is more likely than not that a specialty occupation exists for the full duration of the validity requested on the petition to prevail on an H-1B petition. Scarborough Law has noted that Requests for Evidence and Denials issued by the present USCIS administration apply a much harsher standard which is more akin to a clear and convincing evidence standard with USCIS adjudicators challenging every piece of evidence submitted and making broad statements such as “The evidence provided is self-serving.” Thus, the memo’s requirements aim to narrow H-1B use for third-party worksite placements and places an additional burden on employers.
Third-Party Placement Documentation
The memo provides a list of acceptable documentation that will be required for H-1B petitions involving third-party worksites. Again, USCIS is moving away from the preponderance of the evidence standard in requiring extensive documentation for employers to not only show that a specialty occupation exists but to show apparently every detail of the proffered assignment.
USCIS frequently requested 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 and continue to do so under the memo guidelines. Footnote 3 of the memo emphasized that “Contractual agreements that merely set forth the general obligations of the parties to the agreement, and that do not provide specific information pertaining to the actual work to be performed, may be insufficient to establish that the beneficiary will be employed in a specialty occupation.” Therefore, employers should be prepared to include additional details into Statements of Work and contractual agreements to ensure that the actual work to be performed is detailed therein.
Additional documentation will require examples of the type of work to be performed including:
The Statements of Work provided by the employer must now include details of 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. General Statements of Work showing the period of validity and generalized statements of duties will not be acceptable. Employers should expect USCIS to heavily scrutinize the details of the Statement of Work.
It is customary for employers placing employees on third-party worksites to provide letters from the end-client confirming the assignment. Now, employers will be required to provide extensive detail including “salary or wages paid”. However, the end-client is not the actual employer of the beneficiary and, as such, pays a contract rate outlined in the Statement of Work rather than paying the employer directly. Thus, the end-client rarely has knowledge of the employee’s salary or wages paid. Yet, USCIS is applying a standard that requires the end-client to comment on matters which apply only to the employers. Employers may handle this requirement by including a statement in the end-client letter that the end-client pays the contract rate included in the Statement of Work and has no direct knowledge of the employee’s salary.
USCIS now clarifies that a detailed itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. It is reasonable for USCIS to seek to clarify the duties performed at each third-party worksite when multiple worksites are involved. Given the harsh adjudicatory patterns seen recently, however, employers can expect the itinerary requirement to be harsh with extensive detail required.
The memo further states that “Adjudicators may deny the petition if the petitioner fails to provide an itinerary, either with the initial petition or in response to a Request for Evidence.” This statement leads to a concern that USCIS adjudicators will begin denying petitions which fail to provide the itinerary or any of the evidence requested in the memo without the issuance of a Request for Evidence (RFE), denying the petition based alone on the evidence provided in the initial petition. While USCIS normal procedures provide for the issuance of an RFE, recent USCIS actions demonstrate that the changing landscape of USCIS adjudications.
USCIS is clearly pushing the standard beyond the regulation in stating “[a]lthough the regulations only require that an itinerary contain the dates and locations of the services to be provided when the petition requires the beneficiary to work at multiple worksites, a more detailed itinerary can help to demonstrate that the petitioner has non-speculative employment, even when the beneficiary will only be working at one third-party worksite.” USCIS will now require an itinerary together with corroborating evidence for each item which outlines:
Validity Period of Approved Petition
For several years, 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 contracts provided in the initial petition and any subsequent Request for Evidence. Employers should be prepared to receive short-term approvals as a result. This requirement will increase costs and burden on employers.
Extensions and Adherence to the Terms and Conditions of the Petition
Finally, the memo further places a burden on the employers in demonstrating that “[I]f the petitioner did not comply with the terms and conditions of the original petition and did not file an amended petition on time, USCIS may have eligibility concerns about a subsequent petition filed to extend the beneficiary’s employment.” The memo makes clear that any failure to comply with the terms and conditions of the original petition may result in an approval of the H-1B petition but a denial of the extension of stay. This provision will further burden employers who must now clearly demonstrate that the details provided in the original petition, be adhered to at all times and that changes are reported to USCIS through an amendment. USCIS is likely to argue that any change in the duties of the beneficiary lead to a material change.
The memo has a clear aim of tightening controls on H-1B employers. H-1B employers who previously met the preponderance of the evidence standard must now work closely with legal counsel to ensure that the increased scrutiny is met. The H-1B landscape is changing. Employers must be prepared for the increased scrutiny, more detailed Requests for Evidence and an increase in denials coming from USCIS and should adapt their practices to meet the new standard.
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.