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USCIS Changes Policy on H-1B Petitions for Off-Site Workers

26 Feb

On Thursday, February 22, 2018, U.S. Citizenship & Immigration Services (USCIS) published a new policy memorandum notifying USCIS adjudicators of a change in USCIS policy regarding H-1B petitions filed on behalf of employees who will be assigned to work off-site, also called third-party placement. The new policy went into effect on the day it was published, February 22.

What Exactly Changed?

The new policy supersedes previous government policy and guidance memoranda on the evidence required in connection with third-party placements.

In addition to changing specifically the default position with respect to the requirement of third-party contracts and the sufficiency of itinerary details, the new policy memorandum reinforces and emphasizes that the petitioner must demonstrate each of the following with every petition:

  1. The petitioner has specific, non-speculative work assignment(s) for the beneficiary for the entire validity period requested in the petition.
  2. The petition is supported by a Labor Condition Application that relates to the work to be performed.
  3. The actual work to be performed will be “specialty occupation” work “based on the work requirements imposed by the end-client who uses the beneficiary’s services.”

USCIS emphasizes that in the absence of corroborating evidence on each of these requirements, USCIS may deny the petition.  In cases where the evidence does not establish all elements for the full validity period requested in the petition, USCIS may shorten the validity period and approve the petition for only the amount of time for which all elements were proven.

Finally, the policy memorandum emphasizes that a future extension of H-1B status may be denied “if the petitioner did not comply with the terms and conditions of the original petition and did not file an amended petition on time,” to reflect changes in the terms and conditions of employment.  USCIS will specifically evaluate whether the H-1B worker worked in the specialty occupation, was paid the required wage, and was subject to the petitioner’s right to control the H-1B worker’s employment.

What Should Employers Do?

  1. Prepare to document third-party placement petitions with evidence that includes:  third-party contracts, end client requirements, Statements of Work, and detailed itineraries.
  2. Establish a procedure whereby H-1B employees notify HR and immigration counsel each time there is a change in employment, including visits to a new client site.
  3. Routinely evaluate third-party placements to ensure all placements are in accordance with the terms and conditions of the original H-1B petition.
  4. Notify Foster immigration counsel if there has been or will be a change in H-1B employment so that an amended petition, if required, can be filed timely.  Amended petitions should be filed in advance of the change taking place.

Contact Foster today to initiate H-1B amendment petitions for workers who have had a change in their employment since the original petition was filed.  Your Foster attorney will assist in determining whether an amended petition is likely required and can begin the amendment process to notify USCIS of any material changes.