New Rules for H1B Workers Assigned to Third Party Worksites

The purpose of our blog at h1b.io is to keep you continually informed about the numerous rule changes and restrictions being placed on the H1B visa program.  This is not to discourage you from seeking a visa, but rather to give you real time, up to date information to assist you in finding a valid sponsor and qualifying position.

Since there are new administrative and enforcement guidelines coming out every month, we are trying to stay on top of the entire H1B reform movement for you, and now there is one more rule change to explain…

USCIS Memorandum: February 28, 2018

One of the common practices by tech companies who hire H1B workers is to send them off-site to work on projects for the employers’ “clients”.  This typically occurs with IT outsourcing companies that employ many H1B visa consultants to be subcontracted periodically to different companies, even if there is no substantive business relationship with the end-client, or defined position for the worker.

There have been complaints that these workers are being used instead of offering full-time positions to US citizens, and the foreign workers are being hired at a lower wage.  A new USCIS “rule by memorandum” will place a new level of documentation on outsourcing companies, or even those businesses that want to “share” an employee at multiple sites.

New Rule for Third Party Site Placements

These work assignments for H1B visa holders (known as third party site placements) will now require new documentation and proof of an employer-employee relationship at the site where the work is being performed.  This will take the form of “detailed statements of work or work orders”, that must be provided with the original H1B visa petition.

Specifically, the USCIS states in their recent memo on the topic:

“the employer must provide additional evidence to support that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition; and the employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.”

Key points:

  1. “specific and non-speculative qualifying assignments” -this would eliminate vague “consulting” roles or positions that might not qualify as a specialty occupation under the H1B visa rules.
  2. “for the entire time requested in the petition” – this would prevent “benching” of workers between contracts or assignments while still on the original H1B visa.
  3. “will maintain an employer-employee relationship with the beneficiary for the duration (of the H1B visa)” – So, if the position were a six-month contract, then the H1B visa would only be valid for six months as well.  In other words, the outsourcing employer would have to maintain the employment relationship continually, or risk losing the validity of their worker’s H1B visa status.

Here are some of the proof that will be required from the employer and/or end-client:

  • Detailed work contracts and work orders
  • Contractual agreements for the placement
  • Detailed job description
  • Job requirements, salary, benefits and hours
  • Name of the supervisor of the H1B worker
  • Job duration

Who Will This New Rule Affect the Most?

Obviously, this will be quite a burden for outsourcing companies planning on contracting an H1B visa worker to multiple third-party sites, but that is probably the intention of the new rules.  It does seem like the majority of the H1B visa reform efforts are targeted to outsourcing IT companies, so this is just one more example of the Trump administration’s intention to restrict non-immigrant work visas to US companies who hire non-immigrant workers directly.

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  • June 13th, 2018
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