Global Trade Alert

On February 22, 2018·U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo that requires employers to provide more information when seeking to hire foreign talent under the H-1B visa program, and the worker is employed at a third-party work site. H-1B visas often used by tech companies to hire highly skilled foreign workers, such as computer programmers, engineers, architects, etc. The visas are good for three years and can be renewed for another three-year term. Designated as PM-602-0157, this USCIS policy memoramndum says that -

Based on the agency’s experience in administering the H-1B program, 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, in order 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.

The memorandum provides that when a beneficiary is to be placed at one or more third-party worksites, a petitioner “must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition.” It must show that the petitioner “has a specific work assignment in place for the beneficiary,” is “properly supported by a Labor Condition Application (LCA) that corresponds to such work,” and that the “actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary’s services.” It further stated that a petitioner may be able to demonstrate that the beneficiary has actual work assignment(s) in a specialty occupation by providing a combination of the following or similar types of evidence:

• Evidence of actual work assignments, which may include 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 beneficiary’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. The statement should detail 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.
• 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.