The New Policy Memorandum Aims to Ensure that USCIS Officers are Correctly
and Strictly Interpreting the Existing Regulations for H-1B Petitions
Involving Third-Party Worksites
On February 22, 2018, the USCIS released a new policy memorandum in an
attempt to ensure that USCIS Officers are correctly and strictly interpreting
the existing Contracts and Itineraries regulations governing H-1B petitions
that seek to place beneficiaries at one or more third-party work locations.
The USCIS stated that they have published this memorandum in an attempt
to “protect the wages and working conditions of both U.S. and H-1B
nonimmigrant workers” and prevent abuse of the H-1B visa classification,
which they believe is more prevalent in H-1B petitions involving third-party
The memorandum makes it clear that a Petitioner must show that they have
“specific and non-speculative” specialty occupation work for the entire requested validity period and
that the Petitioner will maintain an employer-employee relationship for
the entire validity period, as well.
If a Petitioner makes statements (regarding Specialty Occupation work and
the Employer-Employee Relationship) that are uncorroborated by detailed
contracts (SOWs) and itineraries of service, or other specific evidence,
the USCIS is likely to issue a denial. Additionally, the USCIS has stated
that broad contracts lacking details of specific work to be performed
(such as MSAs), may be deemed insufficient if submitted without a more
detailed SOW or Work Order.
Additionally, in order to demonstrate that Specialty Occupation work is
available at a third-party location, the USCIS also expects to receive
confirmation from the end-client that they require a Bachelor’s
degree in a specific specialty to perform the proffered job duties, even
though the end-client is not the Beneficiary’s actual employer.
In its policy memorandum, the USCIS has referenced Defensor v. Meissner,
201 F.3d 384, 387 (5th Cir. 2000), where this requirement has been set as precedent.
In its policy memorandum, the USCIS also states that any petition with
more than one work location must give a detailed itinerary listing dates
and locations of work to be performed. Although itineraries are only required
for H-1B petitions with more than one work location, the USCIS has also
stated that providing detailed itineraries for H-1B petitions involving
only one third-party work-site may be helpful in receiving a positive
Overall, the new policy memorandum does not make any changes to the interpretation
of current regulations or precedent. The policy memorandum seeks to ensure
that USCIS Officers understand the strict regulations imposed on H-1B
Petitions Involving Third-Party Work-sites and adjudicate accordingly.
In practice, the USCIS has still approved some H-1B petitions involving
third-party work-sites without the required, detailed contracts and itineraries,
but it is likely, with the new policy memorandum, that H-1B petitions
involving third-party work-sites that are lacking detailed end-client
documentation and detailed itineraries will be denied.
A final section of the memorandum, regarding H-1B extensions, states that
in an extension petition, the petitioner “should also establish
that the H-1B requirements have been met for the entire prior approval
period,” which includes demonstrating that “the beneficiary
worked in the specialty occupation, that he or she was paid the required
wage, and that the employer maintained the right to control the beneficiary’s
employment.” At this time, it is not clear what this requirement
will entail for Petitioners, but it may make obtaining an H-1B extension
more difficult and burdensome.
Please feel free to contact USILAW with any questions or issues that you
may have. You may reach us via telephone at +1 (202) 618 4540 or via email at