Analysis of USCIS Memo on H1B Workers Placed Offsite

On February 22, 2018, the United States Citizenship and Immigration Services (USCIS) released a policy memorandum entitled Contracts and Itineraries Requirements for H1B Petitions Involving Third-Party Worksites. This policy memo revises USCIS policy related to H1B petitions filed for workers who will be employed at one or more third-party or end-client worksites. The memo specifically focuses on staffing companies that use the petitioner – vendor – client relationship, which is common in the information technology industry. When placing an employee at a third-party work location, the petitioner must demonstrate that there is specific and non-speculative work in a specialty occupation for the beneficiary for the entire period requested in the petition.

Although the policy memo acknowledges that end-client work arrangements may be a legitimate and widely used business model, the USCIS states that employer violations, including underpaying H1B workers and having employees work in non-specialty occupation jobs, are more likely to occur when the H1B worker is placed at a third-party worksite. In order to combat these perceived abuses, the USCIS issued this policy memo to clarify how an employer can show that end-client work arrangements are legitimate and non-speculative.

Contracts are Persuasive Evidence in Establishing Work Arrangements

The memo focuses on an employer’s ability to show that a “non-speculative qualifying assignment” will exist for the requested validity period in the form I-129 petition. An H1B petition does not establish a worker’s eligibility for H1B classification if it is based on speculative employment or fails to specifically detail the actual specialty work the H1B beneficiary will perform at the third-party worksite. It is the petitioner’s burden to show that specialty occupation work exists for the beneficiary by submitting corroborating evidence, such as a signed contract, a work order or letter signed by an authorized official of the end-client company, or other documentation establishing the type of work and the duration of work. According to the policy memo, if the petitioning employer does not submit corroborating evidence or otherwise demonstrate that there is a specific work assignment for the H1B beneficiary, the USCIS is likely to deny the petition.

Itinerary as a Regulatory Requirement

When an H1B employee will be placed at more than one physical work location, an itinerary must be submitted. The policy memo states that, if the beneficiary will be working in more than one location, dates of service must be included in the itinerary. According to the policy memo, failure to provide an itinerary required by regulation could result in denial of the petition without a request for evidence (RFE) being issued.

The memo also states that a more detailed itinerary could help to demonstrate that the petitioner has non-speculative employment, even when the beneficiary will only be working at one third-party worksite. Although an itinerary is not legally required if there is only one worksite, the policy memo suggests that including one with exact dates and locations could help demonstrate the existence of specific and non-speculative specialty work.

A Change in Extension Policy

The memo ends with language related to extensions of status for H1B workers who have been employed at third-party work locations. If an employer is applying to extend status for an H1B worker who was previously placed at a third-party worksite, the petitioner may need to prove that the H1B worker maintained status for the entire H1B period. This could be accomplished by providing evidence of the prior project and proof that the required wage for the prior approved H1B petition was paid at all times. If the petitioner cannot demonstrate compliance, the petition may be approved, but only for consular processing (i.e. without an I-94 card granting the extension). This section of the memo drives home the importance of filing an amendment for an H1B employee before the new work is started if there is any material change in employment, including any move to a new client.


This new policy memo continues the recent trend under the Trump Administration to make the H1B process more challenging and cumbersome, especially for IT consulting firms. H1B employers should pay careful attention to the requirements laid out in the memo, and ensure compliance with all future filings, including those for the upcoming fiscal year 2019 H1B cap.


Copyright © 2018, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.