New H1B Policies and 3rd Party Worksites

This past Friday, February 23, 2018, the Immigration Service released a policy memorandum dealing with "Contracts and Itineraries Requirements for H1B Petitions Involving Third-Party Worksites." The release of the memo was to provide guidance to adjudicating officers regarding their responsibility to "administer the nation's lawful immigration system, safeguard its integrity and promise to efficiently and fairly adjudicate requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values." Essentially the memo delineates the additional paperwork that third party placement firms, mainly IT consulting firms, must  include with their H1B petitions.  

In order to achieve a positive result with a H1B petition, employers are expected to include corroborating documentation from the vendors who are involved in the H1B employee's placement. The documentation should include evidence of an actual project, work orders, MSA's, job duties to be performed, qualifications for the position, duration of the assignment and the work hours. Furthermore, the end user client should provide details about the supervision of the H1B employee. This may not be new information, but the push to obtain an end client letter has become a source of tension. Many large employers have recently stopped providing end-user letters for third party contractors. There has not been a single underlying reason for not supplying such a letter, but now it will potentially have a fundamentally negative impact on an H1B petition.

Another prong of the memo deals with H1B extensions where a third-party client site was involved. The petitioner will now need to provide evidence that the H1B requirements were fulfilled during the previous approval period. This creates another mandate for an employer to obtain a "close out" letter from the previous end-client. The requirements of this letter are similar to the usual end user client letter. So now, an employer has the requirement of obtaining an end-user client letter at the end of an assignment and a new letter at the beginning of an assignment. Furthermore, it will make it difficult for a H1B employee to change to a new IT Consulting firm if they are not able to obtain the "close-out" letter or similar evidence. Undoubtedly, this will have a chilling effect on the ability of IT Consulting companies from filing H1B petitions.

Now that H1B quota season is gearing up. It is time to plot out strategy. Please contact me with your H1B issues. [email protected]