On February 22, USCIS released a new memorandum on requirements for third-party work site H-1Bs. As we often see with USCIS memos, it in fact stealthily adds new requirements while stating an intent to simply clarify existing regulations.
Some requirements stated, such as supplying the petitioner/employer’s contract with the end client, an appropriate Labor Condition Application for the end-client work site, and such supporting documents as statements of work/work orders, are in fact not new. These have long been required in these circumstances.
There is now a requirement, however, that the “specialized knowledge” duties of the position as stated by the employer/petitioner be corroborated by the end client. While in theory this can still be done with some of the documents mentioned above, often in practice this will require a letter from the end client going into greater detail than in the past concerning why the tasks require specialized knowledge. This is problematic, as the nature of the arrangement requires that the petitioner rather than the end client be the employer with control over the beneficiary/employee’s work – end-clients may feel uncomfortable acknowledging that they have such detailed knowledge of how the work is in fact performed that they’re aware of specific knowledge requirements.
Further, there is effectively now an itinerary requirement where the existence of work to last through the proposed H-1B period of employment must be documented at time of filing. This requires a degree of foresight concerning the direction of projects that is difficult to have in practice in most business situations. As a practical matter, this may be impossible to supply beyond a certain point leading to shorter approval periods and more extensions.
In an unusual but positive development, the text of the memo explicitly recognizes the third-party work site arrangement as “a legitimate and frequently used business model” – a rare recognition of the underlying legality of this model by an agency that has often treated this legal arrangement as a regrettable and somehow illegitimate loophole.