SCOPE OF THE POLICY MEMORANDUM
On February 22, 2018, USCIS issued a New Policy Memorandum (PM-602-0157) titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” that supersedes several earlier Memos (Contracts Memo; H-1B Supporting Documents Memo; Itinerary Memo) and adds to/complements the Employer-Employee Memo of January 8, 2010 (commonly referred to as “Neufeld Memo”). In issuing this new PM, we believe that USCIS is signaling even tougher adjudications, just prior to the beginning of the H-1B Cap filing season.
The focus of this PM is on Contracts and Itineraries for establishing “Specialty Occupation” and also “Employer-Employee Relationship.” The PM talks about Petitioners having to demonstrate “specific” and “non-speculative qualifying assignments” in a Specialty Occupation for the entire requested duration at “third party worksites.”
WHAT DOES HAVING A LONGER CONTRACTUAL PATH MEAN UNDER THIS PM?
USCIS says it will be difficult to assess a “Speciality Occupation” position and “Employer-Employee relationship” when the relationship between Petitioner and End-Client is more attenuated due to one or more vendors in the middle. Essentially, USCIS is signaling that the more layers there are in the contractual path (i.e., more Vendors in between Petitioner and End-client), the more tougher the adjudications will be, unless Contract docs are provided for the entire contractual path. So, it is essential to support H-1B petitions with Contract documents that cover the entire contractual path and also make efforts to reduce layers in the filing (where possible limiting to one vendor in between Petitioner and the end-client).
HOW WILL THIS MEMO IMPACT H-1B EXTENSIONS
USCIS is signaling tougher adjudications for H-1B Extensions by indicating that it will look at “maintenance of status” type evidence for prior H-1B duration, such as:
| 1. | Pay records |
| 2. | “Right to control” evidence |
| 3. | Whether required H-1B Amendments were filed, if required |
Where the evidence is lacking to properly establish maintenance of status, extension of stay could be denied. At, GLF, we have already noticed RFEs requesting this type of evidence for the past several months and we expect them to become even more common place under this PM and an earlier PM that removed deference to earlier adjudications.
HOW ABOUT H-1B APPROVAL DURATION
USCIS is also signaling that H-1B Petitions may be approved for only the duration demonstrated by the Contract documents. At GLF, we were already seeing 1-year H-1B approvals where the Work Order was of a shorter duration (such as 3 to 6 months) but now we may start seeing even shorter duration approvals tied to the Work Order duration (such as approvals with validity as short as 3 to 6 months).
GLF SUGGESTS INCLUDING FOLLOWING EVIDENCE WITH H-1B FILINGS
To demonstrate a “Speciality Occupation” role and “Employer-Employee” relationship, GLF suggests providing below corroborating evidence with H-1B filings as a standard practice, to improve chances of approval. At GLF, we would routinely request most of the below evidence earlier also, but #5 is NEW and some others are a bit more detailed.
| 1. | Contract Documents: Provide MSA, Work Order, SOW for the entire contractual path a. Work Order of Statement of Work must be for three years (to avoid shorter duration approval) |
| 2. | Vendor and End-Client Letters: Need copies of vendor and end-client letters with below information: a. Detailed Description of Specialized duties b. Qualifications required to perform those duties c. Duration of the job d. Salary or wages paid e. Hours worked f. Detailed description of who will supervise Beneficiary |
| 3. | Need a SOW document from end-client that describes Beneficiary’s duties at client site |
| 4. | Itinerary signed by HR with following details: a. Name of the project beneficiary is assigned to b. Work site Address (include floor, suite and office) and telephone number of location where services will be performed c. Title and duties of position d. Contracted employment dates e. Name of the vendor f. End-client details: name, address, email, telephone number of client contact g. Name, title and contact information of person who will supervise beneficiary |
| 5. | Evidence of actual work assignments such as: technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures and funding documents |
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