In an update of the January 2010 Neufeld memo, USCIS has released Policy Memorandum PM-602-0157 Subject: Contract and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites in conjunction with the Memorandum of January 8, 2010 Subject: Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, including Third-Party Site Placements and the case of Defensor v. Meissner 201 F. 3d 384 (5th Cir. 2000), making it more restrictive for H-1B employers who have their consultants work at third party work sites to fulfill client projects. Here’s a breakdown of the new policy changes.
The PM states in pertinent part, “When a beneficiary will be placed at one or more third-party worksites, the 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.” The Petitioner will need to show that:
• The Petitioner has a specific work assignment in place for the beneficiary.
• The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
• 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. See Defensor v. Meissner 201 F. 3d 384 (5th Cir. 2000).
The regulations, 8 CFR 214.2 (h)(4)(iii)(A) state one of the following standards for specialty occupation position must be met. The standards are:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The natures of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
The Defensor case uses language that refers to staffing companies as “token employers” while the services are rendered by a “more relevant employer.” This language was used to nullify the third requirement that if the company requires a specific degree for an occupation, it is a specialty occupation and eligible for the H-1B visa. The Defensor position is that the end client must also require the degree.
Companies can meet the specialty occupation by indicating they and their client’s history of hiring positions with the same or similar degree. They can also collect want ads indicating similar size companies require the same degree for the same position. In a review of 2017 denials, USCIS dismissed want ads that used equivalent work or varying degrees and referred to these jobs as proof against the Petitioners.
Detailed Job Descriptions and Proof of Employment
Employers will be required submit “detailed statements of work or work orders” about the work to be performed at third party work sites. The employer must show that they have qualifying employment available for the beneficiary throughout the validity of the visa. The memo states that the employer:
“Has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition, and the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.”
This means that duties should include more precise detail of what the employee will be working on at the third-party location. For example, instead of Developing front-end application stating Developing, modifying and maintaining ABC Client’s 123 Application using node.js.
Prove an Employer-Employee Relationships Exists in a Specialty Occupation
USCIS will now require employers to include additional information and documentation in H-1B petitions outlining the work done at third-party worksites and showing that the employer-employee relationship between the petitioner and H-1B beneficiary will continue to exist. The new memo stresses that employers must demonstrate that an employer-employee relationship exists in a specialty occupation. The memo requires detailed contracts and work orders, work product, and contractual agreements regarding the position the beneficiary will be employed in.
These policy changes are a continuation of administration efforts to increase scrutiny of H-1B visas. Petition preparers should exercise extra caution to ensure they include all the documents required under this new policy memo. Organic documents such as statements of work, contracts, offer letters, employment agreements, employee handbooks, invoices and others can include language to comply with the memo.