Tahmina Watson's Thoughts on H1b Visa 'Third Party Sites' Memo

On February 23^rd, 2018, USCIS released a new memo titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. In this memo, USCIS creates new and onerous policy guidance about H1b adjudications. Here are some of my thoughts about the memo:

While the memo targets employers who place H1b workers at ‘third party worksites’ and let’s face it, actually targeting consulting companies- the reality is that the policy will likely trickle into ALL H1b applications, eventually. Mark my words. We have seen it time and time again that policy for one type of case is applied to another. It will happen here too.

My main focus is the first of the two-part test in the memo:

“The beneficiary will be employed in a specialty occupation. This means that the petitioner has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition;”

The phrase ‘Specialty Occupation” has a statutory definition at INA 214.2(h) where we must prove a 4-pronged test. 2017 saw this test challenged to its core leading to an unprecedented increase in denials. 2017 was a turning point in adjudicating H1bs and specialty occupation analysis has been torn apart. While one only needs to meet one of the four prongs, we find ourselves needing to prove all of the prongs. And even then, USCIS has found ways to audaciously disregard the evidence.
As such, in 2018, we will find that even if we meet all prongs of the specialty occupation standard, we will have to prove “specific and non-speculative qualifying assignments’. In situations where companies are providing services to their clients, statements of work (SOW) will play an even more important role than before. Through those SOWs, legal contracts and letters from various parties including end-client and vendor verifying information, one will have to prove ‘qualifying assignment’. The trouble is that just like USCIS has disregarded evidence in 2017 onwards, I anticipate that this memo sets in motion a path to deny more cases because they may be alleged as ‘too speculative’.
We will have to prove that non-speculative assignments exist for ‘the beneficiary’ aka the employee. The trouble is that service providers have contracts with corporate America and these contracts are not for specific employees. The employer has the prerogative to use any employee it wants, move them around where necessary and so forth. However, the memo builds on the Matter of Simeo and will make moving employees around- even if in the same metropolitan statistical area, much more difficult. I wouldn’t be surprised that if new guidance is on the horizon stating that if projects/assignments change (even if in same MSA), amendments will be required because the original I-129 information changed resulting in material change.
Work has to be proven for the ‘entire time requested in the petition’. H1bs can be issued for three years. However, most companies in question will have contracts for 3 months to 12 months. Corporate America breaks down its projects in these ways. And most contracts are renewed once a year, generally in June or July. Typically, history of continuously renewed contracts can demonstrate that contracts will be renewed in the future. While to date USCIS has been arbitrary in the duration of visas it has approved ranging from one to three years, it is clear from this memo that should a contract exist only for 3 months, USCIS will likely grant a visa for 3 months too. In fact, a few weeks ago, we learned of exactly this scenario and the approval was for ONE DAY only. More of that is what we can expect in 2018.
When it comes to H1b extensions, we will have to prove employment for the entire time of the approval. We will have to provide evidence that the employee was working the entire time and thus paid accordingly. Evidence will likely include pay stubs and W2s to show the employee was working as promised in the H1b I-129 application. And as I said above that one policy trickles into another – just yesterday I received an RFE in an R-visa extension case requesting paystubs information for the entire two and half years of the previous approval.

So, this is what I think is happening behind the scenes and I only speculate because I don’t have inside information: While we on the outside of USCIS work around the clock to prepare H1bs to file on March 31^st, USCIS has likely already started drafting its template RFEs based on the above memo. What will it look like?

My guess is that the template RFE will build on the notorious Level 1 and specialty occupation RFEs we saw last year updating with requests for proof of specific and non-speculative assignment for the entire 3 years we will request. Over the past few years, we have seen that the government, in its discretion, approved cases for one year only. Now, even though I hope discretion to approve will continue, it has clear permission to deny cases because the request to prove the assignment for the entire time will not have been met.

And while the memo reiterates employer-employee relationship, we have already seen those requests. The memo solidifies and memorializes action that was policy in the making over the last couple of years.

Call me pessimistic but I also can envision that those very officers drafting template RFEs, are updating template denials with language from this memo.

2017 saw that no profession was above arbitrary adjudication- doctors, lawyers, architects and of course every computer related job. 2018 will fare no better.

So, if you are a lawyer preparing H1bs, particularly for consulting companies, careful consideration will be required at every step. Even stronger teamwork with your client will be essential.

If you are an employer and not a consulting company, don’t think you are safe from questions that will be raised based on this memo.

And if you are an employee – keep your options open. The world is a big place.

In sum, the H1b visa is a victim of this administration. But the real victims will be US businesses and the very workers that the memo purports to protect. This is because H1b visas create new jobs and higher wages. Just like everything else this administration wants you to believe, the opposite of what is said is the real fact.