A Current Discussion: H-1B Policy and RFE trends for Off-Site Employment

A revisit of the February 22nd Memo which created an augmented list of H-1B requirements for H-1B Petitioners with third-party placements shows us the following items are most critical to meeting any current H-1B requirements.

 

Specialty Occupation:

With a focus on proving a “tangible” job description, USCIS requires an H-1B Petitioner to meet one of four specialty occupation factors. The four factors are as follows:

  1. That a Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  2. That the degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  3. That the employer normally requires a degree or its equivalent for the position; and
  4. That the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Broken down, these requirements mean the following:

1.   Demonstrating a clear comparison of the job duties of the position to the job duties laid out for the corresponding occupational code, under the Occupational Outlook Handbook published by the Bureau of Labor Statistics;

2.  Showing USCIS that the industry indeed requires a bachelor’s degree or higher in the specific field is required for the position;  

3.  Providing a list of all employees employed by the Petitioner company, past and present, with corresponding documents to show that the Petitioner has always required a bachelor’s degree or higher in the field to perform the position; and

4.  Providing an explanation of the services the employer provides and providing a comparison of those services to those of the questioned position, and why a bachelor’s degree is required for the position.

 

Establishing the Employer-Employee relationship:

To establish an employer-employee relationship in a third-party placement case, an employer must demonstrate that they alone have the right to control their employee and that the end-client does not have the right to control (there are several factors outlined in the 2010 Neufeld memo that can be detailed in the following documentation):

Like the Specialty Occupation requirement, establishing the Employer and Employee relationship requires some items per USCIS’ most recent policy memo, such as:

  1. Contracts or work orders from the end-client (highly favorable);
  2. End-client letter; and
  3. Technical documentation from the client site.

 

Establishing Sufficient Work Availability for the duration of the requested H-1B period.

Per USCIS’ most recent policy memo, simply stating that a project is “ongoing” does not establish any work dates. It is clear with recent trends that the strongest petitions contain an end-date of a project, preferably within a work order, to show that there is non-speculative work availability.  

 

The big takeaway Per USCIS’ recent memo and recent RFE trends?

The big takeaway with recent RFE trends is that per USCIS’ most recent policy, documentation straight from the end-client is the most favorable in establishing H-1B requirements for third-party placement cases, most notably with submitting contracts and work orders.

 

Overall, a contract, work order, job posting, letters or any alternative evidence that confirms the following items is important in documenting H-1B offsite employment:

1. That a bachelor’s or higher is required for the position;

2. That the end-client does not have the right to control and is not the H-1B employer (while confirming who is the actual employer); and

3. That there is a clear dated project duration to show non-speculative work availbility.

Any questions or concerns in providing required documentation is a recognizable concern and should be discussed with immigration counsel in addressing any of the above H-1B requirements.

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