Analysis: USCIS' new H-1B policy memo for off-site workers | KNG Law

By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas

USCIS issued a new policy memo (PM) on Thursday February 22, 2018 setting new requirements for off-site workers.

The new PM is effective immediately and expands the contract and itinerary requirements in order to get an H-1B approval for companies filing for employees who will be stationed at off-site work locations. Equally as important, the new PM sets in stone a lengthy and comprehensive list of reminders, giving us a sense into how exactly off-site petitions are currently reviewed by the agency. 

Below are the key changes and reminders that off-site H-1B employers need to be aware of going forward in light of USCIS' new PM: 

1. Client contracts.  USCIS now wants to see contracts from end-clients. In other words, third-party contracts are required in order to have the best chance at approval now. Petitions filing only contracts between the employer and any vendor companies run the risk of not being considered sufficient enough for an approval. 

What if the client contract cannot be submitted, or what if the contract(s) submitted are not detailed enough? There are alternative documents that can be submitted, but again all documents must show the work in sufficient detail.

2. Itineraries must show "exact" service dates and when and where services will be performed. USCIS wants to see a more specific itinerary of services. The new PM indicates that the Service wants to see exact dates and when and where the employee will be performing their services. If the employee will be working at multiple locations, this means that the dates (to and from) will need to be listed for the time spent at each location. We should probably not take lightly the fact that USCIS italicized the word exact in their memo. The Service also indicated that officers will be checking for telephone numbers of all work locations. This shows the Service will be assessing the itinerary more closely. Submitting detailed itineraries is the best procedure when submitting off-site H-1B petitions going forward. 

3. USCIS reminds us that specialty occupation requirements will be closely assessed. All H-1B petitions must be considered a "specialty occupation." The new PM reminds us that the specialty occupation requirement will be continued to be closely assessed. The PM states the Service will be reviewing petitions to ensure that the off-site employer has a "specific and non-speculative" work assignment.  What does this reminder mean? USCIS will be assessing all documentation, including client contracts and work orders, to determine the work in question. The PM actually indicated that all the contracts submitted must not "merely set forth the general obligations of the parties." Bottom line? The contracts and work orders need to now contain detailed job duties and explain in detail the work to be performed going forward to strengthen the chances of approval.

4. USCIS reminds us that the employer-employee relationship between the petitioner company and H-1B employee will be closely assessed. The petitioning employer has to always establish they have an employer-employee relationship with the H-1B employee. The new PM reminds off-site employers that the documentation they submit must show the continuance of an employer-employee relationship for the duration of the requested H-1B period. What does this reminder mean? There are several factors that can establish the employer-employee relationship, which USCIS will be closely reviewing all submitted documents to determine if the relationship is present. This means that that all documentation, including client contracts and work orders, must show this employer-employee relationship between the petitioning company and off-site employee.

5. Vendor work arrangements will be closely reviewed.  The PM indicated that extra scrutiny is and will be placed on work arrangements where there are one or more vendor companies. The Service has indicated that direct employer and client project assignments are easier to ascertain. What this means? The more vendors involved in a work arrangement, the more USCIS officers review the petition.

6. The Service reminded us that Amendments must be filed when required. Since 2015, Matter of Simeio has required amendments to be filed for any change in work location in a different metro area and for any material changes to a work assignment. The new PM simply reminds us that officers will be reviewing petitions to determine if an amendment was required to be filed, especially in light of extensions. If USCIS determines if an amendment was required, but was not filed, USCIS may approve the H-1B but deny the extension of status. 

7. Shortened approval dates are likely if documentation doesn't warrant a 3 year approval. The new PM states that USCIS officers will be reviewing all documentation to determine the duration of the services. If the documentation establishes a shorter time than what is requested, USCIS may issue a shorter approval notice. This is not favorable to a business who is providing consulting services with contracts only issued for 6 month durations at a time. Work orders only confirming 6 month durations receive more scrutiny. 

This new policy memo is not a big surprise given all the changes and extra scrutiny in immigration lately. The silver lining in all this, is that the policy memo has been released timely enough before the new cap season opens on April 1, 2018. With a month left until new H-1B cap filings, the PM has been released in time to give employers and their representatives sometime to make the necessary preparations to prepare the best case possible.


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