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New, Significant H-1B Hurdles for Consulting & Staffing Companies

Berin Romagnolo February 27, 2018

The USCIS has issued a new Policy Memorandum stating new documentary and eligibility requirements for H-1B applications for employees working at client or third-party worksites. This will largely affect IT consulting companies, management consulting companies, other consulting companies, and staffing companies.

Effective immediately, employers must submit along with their H-1B applications evidence of the actual work assignments the employee will perform off site. The evidence can be a combination of the following or similar documents: (1) copies of actual work assignments (ex: technical documentation, milestone tables, funding documents, etc.), (2) copies of signed contracts between the employer and all other entities involved in the employee’s placement, (3) copies of detailed statements of work (SOW’s) or work orders signed by the end-user client where the work will be performed, stating the complex job duties, qualifications needed, duration of the job, and hours to be worked, and (4) letters signed by each end-user client where the employee will work, stating the complex duties to be performed, the qualifications, the duration of the job, salary or wages, benefits provided, hours, and a detailed description of who will supervise the employee. General SOW’s and contracts with the end-user client that do not detail the particular employee’s duties are insufficient. Further, the evidence must cover the entire requested H-1B duration (usually 3 years), or else the H-1B will be approved for a shorter period of time to coordinate with the scope of the evidence provided. 

In addition, where an employee will provide services in more than one worksite (for example, multiple client sites), the employee must provide a detailed itinerary with the dates and locations of the services to be provided, including the name and address of each end-user client. The Policy Memorandum also recommends providing this itinerary when the employee will work at just one off site worksite.  

When an employer is seeking to extend an H-1B for someone who was placed off site, it must provide the documentary evidence described above to cover the entire prior H-1B period, as well as the prospective, desired H-1B extension duration.  

This Policy Memorandum is a significant shift from prior H-1B adjudication practice. Recently, with the increased Requests for Evidence issued to H-1B applicants under the current Administration, the USCIS has been requesting the types of documents described above. However, this Policy Memorandum formalizes these requirements into the H-1B adjudication process. Often, the types of contracts and SOW’s described above (detailing the particular employees actual work assignments, etc.) do not exist. Thus, employers should proactively plan on drafting the required documentation and having them executed by the relevant clients. That process can be burdensome and time-consuming. It may be difficult to find the appropriate person at the client organization to sign such documents, and/or get them to agree to sign such documents. Thus, employers should plan ahead and budget extra time into the H-1B application process since gathering this additional evidence could delay the desired start date for an employee (which, could, in turn, cause staffing, operational, and production burdens and delays).

If you have any questions about this client alert, please contact Berin S. Romagnolo.

This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2018 Posternak Blankstein & Lund LLP. All rights reserved.

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