Dealing with RFEs for Third Party Worksites

The H-1B visa program is clearly one of the main targets of the Trump administration. In the coming weeks, the U.S. Citizenship and Immigration Services (“USCIS”) will begin issuing Requests for Evidence (“RFEs”) for many of the Fiscal Year 2020 H-1B cap cases that were chosen in the lottery. While it is still completely possible to obtain an H-1B visa or change your status to H-1B from within the United States, due to recent policy changes directed at this specific program it is critical that your initial petition or response to an RFE contains strong documentation that addresses the exact issues being targeted by the administration. It’s important to remember that the law itself has not changed; the rules have just tightened making it more critical to be precise in your applications.

One of the main marks of the Trump administration is H-1B petitions involving third-party worksites. Third-party worksite structures are common in IT and consulting companies but arise in a wide variety of industries. On February 22, 2018, USCIS issued a policy memorandum (“2018 Third Party Memo”) explaining that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things: (1) The beneficiary will be employed in a specialty occupation; and (2) The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. The main take-away from the 2018 Third Party Memo is that USCIS may request detailed documentation, specifically contracts and itineraries, to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

Pre-2018 Third Party Memo USCIS Policy Framework

Since the 2018 Third Party Memo was released, immigration law practitioners have seen that indeed USCIS has been requesting detailed documentation that was not usually requested previously. Prior to the 2018 Third Party Memo, USCIS relied on the framework laid out by Donald Neufeld’s January 2010 guidance (“the Neufeld Memo”). The Neufeld Memo provided that the petitioner will have met the employer-employee relationship test, if, “in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner’s business and the type of work of the beneficiary.” This was a relatively reasonable framework that took into account that there are differences in industries and specific business, and these differences can affect the type of documentation that is most appropriate or possible to submit to USCIS.

Policy Changes Implemented by the 2018 Third Party Memo

The 2018 Third Party Memo asks for more detailed and narrow documentation and throughout 2018 and 2019 practitioners have seen Requests for Evidence (“RFEs”) issued based on these specifications. Although the 2018 policy memorandum recognizes the existence of third party worksites as legitimate under the H-1B visa program, it advises that petitioner should submit a combination of the following or similar types of following evidence:

• Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents;
• Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite;
• Copies of detailed statements of work or work orders signed by an authorized official or the ultimate end-client companywhere the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked;
• A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The letter should provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.

One of the major changes from the Neufeld memo is the emphasis on evidence provided by the end-client, specifically detailed signed letters and copies of contracts/work orders. When approaching an end-client regarding obtaining this evidence, a petitioning employer must be careful to explain that the end-clients’ obligations are not increasing by providing such evidence. Many end-clients may feel that providing detailed evidence to support the petition of someone who is not their employee may be in some way detrimental to them. It’s understandable that the end-client may be confused at the sometimes awkward request for such documentation. This is especially true if a petitioning employer is requesting such documentation from a newly acquired end-client. However, the nature of the evidence that the end-client is being asked to provide is to show that they have absolutely no employer-employee relationship with the beneficiary. The evidence must show that it is Petitioner that has the right of ultimate control over beneficiary’s employment.

How to Approach and Work with an End-Client in Order to Obtain the End-Client Focused Evidence Outlined in the 2018 Third Party Memo

So, let’s say that you are in a situation where you need to file an initial H-1B petition for a beneficiary who will be working for you while at a third-party worksite location all or some of the time, or you have just received an RFE that requests further information regarding this issue. The first step should be to approach your end-client carefully and see if they are willing to work with you. The end-client needs to understand exactly what should be in the letter they will be signing. One approach is to present the end-client with a drafted letter for their review. The letter should be as simple and clear as possible, as lengthy and more complicated letters may understandably panic an end-client, especially if the end-client is a large corporation and you are dealing with a risk averse General Counsel. Furthermore, for contracts and work orders, the end-client should understand that sensitive information in such documents can be redacted before submission to USCIS to make them more comfortable.

Options if the End-Client Refuses to Provide the End-Client Focused Evidence Outlined in the 2018 Third Party Memo

If the end-client is unwilling to work with you even after you explain their lack of obligation to USCIS and the beneficiary, all is not lost. USCIS noted that the 2018 Third Party Memo should be read together with the Neufeld Memo. Accordingly, although a letter from the end-client is strong evidence, this is not an actual USCIS requirement and other evidence may be submitted. For example, Question 5 of the January 2019 Q & A Guidance states the following:

“Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help a petitioner meet its burden to establish that a valid employer-employee relationship exists and/or will exist, this type of documentation is not specifically required. Although the Feb. 22, 2018, “Contracts and Itineraries” memorandum states that evaluating the chain of contracts or legal agreements between the petitioner and the ultimate third-party worksite may help USCIS to determine whether the requisite employer-employee relationship exists and/or will exist, that memorandum does not make that type of documentation mandatory. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship exists and/or will exist. The types of evidence listed in the memoranda are not exhaustive.

Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship exists and/or will exist. It is important to reiterate that the petitioner has the burden of establishing eligibility for the benefit sought (for example, that the beneficiary will be employed in a specialty occupation, that the beneficiary is qualified for the occupation, and that the petitioner will have a valid employer-employee relationship with the beneficiary).”

Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions, rev. January 2019.

Thus according to USCIS, other evidence may be used when an end-client is non-cooperative. It remains to be seen if USCIS will strictly require evidence such as detailed letters and contracts from the end-client when responding to RFEs issued for the FY 2020 H-1B cap season.

The attorneys at Passage Immigration Law would be happy to assist you with explaining the evidentiary requirements to your end-client, and we can draft the letters for the end-client for their review. Although the requirements are becoming more stringent, we can help you to navigate an initial H-1B petition or RFE response involving a third party worksite by providing clear evidence to USCIS that overcomes the evidentiary burden laid out in the 2018 Third party worksite memo.