USCIS Puts H-1B Third-Party Placement Employers on Notice: What does this mean

On 22nd Feb 2018, the US government agency under President Trump announced  "Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions" This move by the Trump administration is making headlines across media in India, China and other countries with the majority of H1 visa applicants.

While most of the headlines are quoting the USCIS announcement, here is what it could mean to individuals and companies*:

• Applicants from IT and Software services companies that are in the List of top 100 H1B Visa Employers including Infosys, Capgemini, Tata Consultancy Services (TCS), IBM, Wipro, Accenture, Tech Mahindra, deloitte Consulting, Cognizant Technology Solutions, HCL America and others are likely require additional scrutiny
• These software service companies place people at client sites to work on client projects. For example, Infosys may place its employees to work at the retailer Gap in San Bruno, California, Microsoft in Redmond, WA or at Bank of America in North Carolina. 
• As per USCIS, "When H-1B beneficiaries are placed at third-party worksites (e.g at Gap) petitioners (e.g Infosys) must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary (Infosys emplyee) for the entire time requested on the petition.
• Applications will require more paperwork and undergo additional scrutiny (ref: "have specific and non-speculative qualifying assignments" )
• Until recently, the services company, e.g IBM, could request a H1 visa for upto 5 years. This will change. 
• As per USCIS "While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship."
• Employers like Google, Microsoft, Amazon, Apple, Intel, JP Morgan Chase that are in the List of top 100 H1B Visa Employers, may not be impacted by this regulation. This is because, these employers also hire foreign workers directly and may be applying H1 visas for them. 
• Employees of these direct employers including tech employers like Google, Microsoft, Amazon, Apple, Intel may not undergo additional scrutiny. 

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Read rest of the announcement - 

"USCIS Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions" 

The H-1B visa program generally allows a foreign employee to work for a specific sponsoring American employer. As is true in many employment situations, the location of work can change. USCIS has published a policy memorandum  making clear that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite. 

In publishing this policy, USCIS clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.     

The guidance, effective Feb. 22, 2018, explains that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

• The beneficiary will be employed in a specialty occupation; and

• The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

The updated policy guidance aligns with President Trump’s Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers. Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning.

* Note: Information on this blog is just a review of the published news. None of this may be considered as legal advice.