Consistent with the current culture of USCIS adjudications, H-1B employers who provide IT consulting and staffing services are faced with yet one more obstacle to navigate. In accordance with H-1B regulations (8 CFR §214.2(h)(2)(i)(B)), a petition that requires services to be performed in more than one location must include an itinerary with the dates and locations of the services. USCIS has now seized upon this regulatory requirement and has taken it many steps further.
Almost without exception, if not submitted with the original petition, a letter must be secured from the entity or entities with which Petitioner contracts, describing in some detail a description and nature of the contracted employment. Specifically, USCIS is not only requesting an itinerary with dates and locations and the name of each work site where the beneficiary’s services will be delivered, but also the name of the project(s) to which the beneficiary is assigned and whether the work site has the ability to assign the beneficiary to a different employer. Each letter must provide the address and telephone number where a contact can be reached and include the title and duties of the beneficiary’s position, the minimum education requirement for the contracted position, and the name and title of the person who primarily supervises or will supervise the beneficiary at the work site. According to a typical RFE issued by USCIS for such a case, “such information is necessary to determine whether the actual duties to be performed under contract for an end client are duties associated with the specialty occupation sought”.
For each of the beneficiary’s work assignments, USCIS is also requesting evidence of any contracts and related work orders, identifying the succession of consulting or staffing businesses involved in the assignment of the beneficiary to each ultimate work location. Such contracts and related work orders must provide the address and telephone number where a contact can be reached and all contracts must be executed.
As a result of USCIS’ position, to avoid an almost certain RFE, it is incumbent to supply the requested information with the filing of the original H-1B petition. As such, companies that regularly utilize H-1B contract workers are faced with a choice: whether to provide the requested letter and copy of relevant contracts and work orders to the H-1B employer or potentially lose the benefit of the contract workers’ services.
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Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP