On February 22, 2018, USCIS issued a new policy memorandum that purports to align with President Trump’s Buy American-Hire American Executive Orders and protect the interests of U.S. Workers. In this policy memorandum, USCIS emphasizes that in petitioning for an H-1B worker, the employer must show that the individual will be working in a specialty occupation and that the employer will maintain an employer-employee relationship with the individual for the duration of the requested validity period. To show that the requisite employer-employee relationship will exist for the requested validity period, the employer can present a variety of types of documentation, including the following:
-Evidence of actual work assignments, such as technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
-Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the individual’s placement if the petitioner has not directly contracted with the third-party worksite.
-Copies of detailed statements of work or work orders signed by an authorized official of the ultimate end-client company where the work will actually be performed by the beneficiary.
-A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.
While USCIS can, at its discretion, issue an H-1B approval notice for up to three years, it will be seeking evidence that the employer-employee relationship will continue for a full three-year period, otherwise USCIS is likely to limit the approval length of time to the length of time that the employer has shown through the documentation that the individual will be placed in non-speculative work and that the employer-employee relationship will continue to exist.
Additionally, when filing for an H-1B extension for individuals working at 3rd party worksites, the new policy memo requires employers to show documentation demonstrating that the H-1B requirements were met for the entire prior H-1B approval period. This will include providing documentation that the H-1B worker worked in the specialty occupation, was paid the required wage, and that the employer maintained the right to control the H-1B employee’s employment.
This new policy memorandum is likely to have broad effects on petitioners placing H-1B employees at third-party worksites. If you would like to discuss how the new documentation requirements outlined in this policy are likely to affect your H-1B workforce, please contact one of our attorneys at 312-580-0100