An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency. For a more detailed discussion of the first requirement please see our previous articles.
The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary.
Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store.
However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite.
It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary.
Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner.
However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.
In the 1990’s there was a growing concern that staffing agencies began to specialize in filing and hiring H-1B visa beneficiaries only to immediately contract out H-1B recipients to undisclosed third-party worksites.
The concern with these agencies, known as “body shops,” is that once an H-1B visa holder is transferred to a third-party worksite he or she will engage in work that is not considered a specialty occupation, the foreign nationals will not be given their contracted wages, or paying the foreign nationals wages will be lowered when the visa holder is not performing a specialty occupation assignment.
The information technology industry was the main recipient of “body shop” staffing agencies and the concern continues today.
Previous USCIS Rule
Under the previous USCIS rule, an H-1B visa beneficiary neither raises suspicions nor was required to provide additional documentation based solely on the fact that the beneficiary was spending a portion of their employment at third-party worksites.
If the USCIS were concerned that third-party worksites would violate the H-1B visa requirements, then the USCIS would require the petitioner to complete a Request for Evidence (RFE), which usually required the employer provide the USCIS with employment contracts and/or itineraries outlining the work to be completed by the beneficiary.
New USCIS Rule
The linchpin of the new USCIS rule is that the petitioner must establish that the H-1B requirements will be met for the duration of the beneficiary’s residency at both the petitioner’s and the third party’s worksites. The evidence must be non-speculative.
Clarification of Itinerary Requirement
Additionally, an employer must include an itinerary that lists the dates of service and the location services are to be rendered at each third-party worksite with the initial application. Prior USCIS policy had allowed general statements, as opposed to exact dates and places of employment, to satisfy the itinerary requirement and at times, excused petitioners from submitting an itinerary altogether. USCIS now clarifies that an itinerary with the requested information must be included when the beneficiary will be working at multiple third-party sites. These requirements apply to first time applicants and applicants seeking to renew their H-1B visa status.
- Non-speculative Evidence
The memo focused on an employer’s requirement to demonstrate that a non-speculative work assignment exists for the entire duration of the H-1B visa applicants requested residency.
Corroborating evidence of a non-speculative work assignment would include a signed contract, a work order or letter signed by an authorized official of the end-client company, or other documentation establishing the type of work and the duration of work, such as a summary of detailed statements of work to be rendered.
Contracts are non-speculative evidence that a valid employer-employee relationship will exist for the duration of the beneficiary’s residency because contracts outline the rights of each employer, proving that the petitioner will maintain control over the beneficiary’s work.
If the relationship between the petitioner and the beneficiary become more attenuated through intermediary contracts, then the petitioner must specifically trace how it maintains a valid employer-employee relationship.
Additionally, the corroborating evidence must support that a valid employer-employee relationship will exist for the duration of the visa holder’s residency. This may be difficult if the petitioner has contracts that typically renew.
For example, if a petitioner typically enters into six-month service contracts that automatically renew unless either party gives notice and the petitioner has a history of having its contracts renewed, then the USCIS is likely to only grant an H-1B visa for six months because that is the only non-speculative period employment.
Now, there is no exemption to the regulatory requirement that a petitioner submit an itinerary listing the dates of service and location service will be rendered by the beneficiary. The petitioner’s application may be denied if he or she fails to provide an itinerary in the initial application.
The dates and locations of services are the minimum requirements, but a petitioner may include the following to assist the USCIS in determining that a valid, non-speculative employer-employee relationship will exist: (1) the dates of each service or engagement; (2) the names and addresses of the ultimate employer(s); (3) The names, addresses (including floor, suite, and office) and telephone numbers of the locations where the services will be performed for the period of time requested; (4) any additional corroborating evidence of the above.
Overcoming the New Evidentiary Standard
The USCIS is looking for detailed, clear evidence that an employer-employee relationship will exist throughout the duration of the duration of the beneficiary’s residency. When in doubt, petitioners should provide as much supporting evidence as possible.
The clearest evidence that the petitioner will control the beneficiary will be the petitioner’s contracts with third parties. If contracts do not provide the level of detail necessary, then additional documents will be necessary.
Examples of additional evidence include, but are not limited to, the petitioner’s organizational hierarchies, how the beneficiary requests time off and from whom, how the beneficiary’s performance is reviewed, how the beneficiary receives benefits and from whom, reports the beneficiary is required to complete, or how the beneficiary records time worked.
What Remains Unchanged?
There is no change to the rule that a company may redact trade secrets or private information as long as the company is able to meet the evidentiary standard.
The USCIS’s policy memorandum on third-party worksites should be interpreted as a requirement to unequivocally demonstrate that an employer-employee relationship will exist in the petitioner’s initial application. Petitioners should not submit the minimum requirements and wait for the USCIS to request additional documentation but rather be proactive in presenting as much detail regarding the beneficiary’s position as possible.