The H-1B visa program involves professional or highly skilled/specialty foreign workers being employed in professional or highly skills/specialty positions connected to a specific U.S. employer.
As is the nature of employment, sometimes the work location connected to an employer changes. This week, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum noting that USCIS may request detailed documentation to ensure that there is a sustained legitimate employer/employee relationship while the foreign national employee is working at a third-party worksite.
There are existing USCIS regulatory regulations relating to H-1B workers who will work at third-party worksites. This policy memorandum reemphasizes that petitioning employers must provide documentation, including contracts and itineraries, for H-1B workers that work at third-party locations.
Effective Feb. 22, 2018, petitioning employers must show a preponderance of evidence related to employees who will work at third-party worksites. These include showing that the H-1B beneficiary has a specific assignment at the third-party worksite related to his/her specialty occupation. At its discretion, USCIS may vary from the traditional three-year approval on an H-1B visa, instead approving the status for the length of time the documentation shows the beneficiary will be engaged in specific, non-speculative work at the third-party worksite. The petitioning employer and H-1B employee must maintain their employer/employee relationship throughout that time.
In line with President Donald J. Trump’s Buy American and Hire American executive order, USCIS indicates this directive protects the interests of U.S. workers.
Noted in the memorandum: “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.”
Items to note:
•Employer must maintain an employer/employee relationship with the H-1B beneficiary for the duration of the requested validity period.
•The petitioner/employer must demonstrate that the beneficiary/employee is engaged in specific and non-speculative qualifying assignments in a specialty occupation.
•The petition is supported by a Labor Condition Application (LCA) that corresponds to the work.
•Corroborating evidence, such as contracts and work orders, may be required to substantiate the specific and non-speculative work at the third-party site.
•Other evidence may include work assignments, technical documentation, cost-benefit analysis and funding documents.
•Employer may be required to submit copies of the contractual agreements between the petitioner/employer and the other companies at which sites the beneficiary/employee may work.
•Work orders from the company at the third-party site may be requested. These would detail specialized duties performed by the beneficiary/employee.
An itinerary should go with a petition when work will be performed at multiple locations. This itinerary must include dates, locations and supporting evidence. Providing careful and thorough details will be beneficial in the adjudication process. There will be no exemptions.