USCIS Memo on Third Party Worksites for H-1B Employees

On January 8, 2010, the USCIS released a memo regarding establishing an employee/employer relationship for H-1B petitions where employees are placed at third party sites.  This memo gives guidance to USCIS adjudicators in determining whether a sufficient employer/employee relationship exists as for the Petitioner to qualify as an “employer” under the Immigration and Nationality Act and the Code of Federal Regulations when applying for H-1B status on behalf of its employees.

The memo outlines several types of relationships where the employer/employee relationship exists:

• Traditional employment
• Temporary/Occasional Off-Site employment (for example, accountants who visit different client sites for audits and the petitioner provides food and lodging costs for the beneficiary who is normally stationed at a centralized office run by the petitioner.)
• Long Term/Permanent Off Site employment (for example, architects who are working off-site at a project site where the petitioner provides the instruments and tools for the project and the beneficiary reports to the petitioner, and the underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.)
• Long Term Placement at a Third Party Work Site (for example, the petitioner is a computer software development company which has contracted with another company to develop an in-house computer program.  The beneficiary will work on the contract at the client site.  While the beneficiary is at the site, he reports to the petitioner, and is paid by the petitioner and receives benefits from the petitioner.)

The memo also states that self-employed beneficiaries and independent contractors do not have a sufficient employer/employee relationship for H-1B purposes.  Lastly, the memo states that Third Party Placements/ “Job Shops” do not demonstrate the requisite employee/employer relationship.  These relationships exist when the petitioner has contracts with numerous outside companies in which it supplies employees to fill specific staffing needs.  The specific staffing needs are not outlined in the contract between the petitioner and the third-party company, but are staffed on an as-needed basis.   The beneficiary does not report to the petitioner for work assignments and the petitioner does not control how the beneficiary will complete daily tasks.

The USCIS is now going to subject any H-1B application to strict scrutiny to determine if the relationship is analogous to the “Long Term Placement at a Third Party Worksite” situation as described above, which does satisfy the employee/employer test, or whether it is more analogous to the “Job Shop” scenario described above.  Therefore, H-1B petitions that do not involve a traditional employment relationship or in which the employee must travel to additional worksites will need to provide the evidence stated below (as appropriate):

• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
• Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
• Copy of an employment offer letter that clearly describes the nature of the employer/employee relationship and the services to be performed by the beneficiary;
• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
• A description of the performance review process; and/or
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Given the increased scrutiny on these H-1B petitions, the Law Office of Melissa Harms will work with employers in these situations to gather the necessary documents and craft legal arguments to ensure the maximum chances of success for H-1B petitioners.