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H-1B: USCIS Memo on Third Party Placement Q & A

On February 22, 2018, USCIS issued a new policy memo with new guidance regarding H-1B placements at third-party worksites. These are petitions where the worker is employed and sponsored by Company A but assigned to work at Company B through a contract. The recently issued memo further expands the documents that will be required in order to obtain H-1B approval for work involving third-party placements.

Specifically, USCIS adjudicators pointed to:

  • Evidence of actual work assignments (technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, funding documents, etc.)
  • Copies of contracts between petitioner and ALL companies involved including a vendor company between the petitioner and end-client.
  • Copies of detailed statements of work from the ultimate end-client company.
  • End-client letter from the ultimate end-client company.
  • Complete itinerary with dates and locations of services is required for petitions with multiple third-party worksites and highly recommended even for petitions where the worker is placed at only one third-party worksite.

New H-1B Visa Policy Memo Q & A

Will they issue H-1B visas for employees placed at third-party locations?

Yes, these can be approved, but there has been a trend of increased scrutiny from USCIS regarding these cases.

Do I need to have all documents to file an application with USCIS?

Preferably yes, but if you do not have all the documentation at the time of filing you will be risking a Request for Further Evidence (RFE) and if you do not provide documentation at the time of responding to your RFE you have a greater chance of getting the H-1B denied.

What are my chances of denial if the company cannot provide all the documents listed in the memo?

If you do not provide all the documents, there are very high chances of denial.

Do we have to file an amendment if the job I am transferring to is similar and I am moving within the same MSA?

Previous to the issuance of this Memo it was acceptable to not file an amendment when you move within the same MSA with a similar job. We now fear that a strict interpretation of this memo might lead USCIS to take the stance that an amendment is required when a client is changed, as USCIS may come up with some reason to state that the job is different than the previous job.

If the contract states the job is only for 6 months, will I get H-1B approval for 3 years or for 6 months?

If the length of the project is not clear, USCIS may grant approval to the shortest period of time possible. Previous to the new memo they would often approve periods of 1 year and/or 3 years. However, since the issuance of this memo, it is not clear if they would, in this case, approve the visa for 6 months or one year. At any rate, they would not likely approve a 3 year period for a petition that indicates the job is only for 6 months.

If I already received H-1B approval will I have trouble getting the stamping if I am missing the documents mentioned in the memo?

The memo instructs adjudicators to look more closely into whether the terms and conditions of the previously approved petition were met. This may mean that the Department of State (Consulate Office) may take the stand that even though the petition was approved they may re-adjudicate the entire H-1B. If they then find that the documents requested in the memo are not there in the file they may issue a 221G at the consulate or request the USCIS to revoke the approved H-1B.

I work with a top 5 consulting company. Is this memo applicable for my H-1B extension or amendment?

Yes there is no exception for big companies if your company is placing you at a third party site this memo is applicable