Through its latest policy memorandum, issued on February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) has formalized additional requirements for H-1B petitions involving off-site employment. While USCIS states that its requirements for employers to provide detailed contracts and itineraries as described in the policy memo are intended to combat fraud and abuse due to an increased rate of H-1B program violations with off-site employees, the primary effect of the memo seems to be a more onerous process for filing such H-1B petitions.

In furtherance of President Trump’s “Buy American and Hire American” executive order, USCIS’s February 2018 policy memorandum mandates employers provide additional documentary evidence when H-1B employees will provide services at third-party worksites. The February 2018 policy memo applies a novel interpretation of the immigration regulations, essentially treating petitioners who assign H-1B employees to client worksites as “agents” rather than “employers” for evidentiary purposes to impose a more burdensome documentary standard for any off-site H-1B employment. The regulation at 8 CFR 214.2(h)(2)(i)(B) states, “A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS . . . .” However, the regulation at 8 CFR 214.2(h)(2)(i)(F)(2) provides that agents must submit itineraries specifying “the dates of each service or engagement, the names and addresses of the [end] employers, and the names and addresses of the establishment, venues, or locations where the services will be performed.” The “clarifying guidance” of the February 2018 policy memo thus appears to be an attempt by USCIS to impose a new standard for the adjudication of H-1B petitions involving third-party worksites.

The February 2018 policy memo requires an employer placing an H-1B worker off-site to submit detailed corroborating evidence. Although H-1B petitions may be approved in increments of three years, USCIS will generally limit the approval period to the length of time shown by the evidence submitted. Statements of work or letters signed by third-party clients should therefore include concrete details describing the actual work to be performed, such as the employee’s duties, the qualifications required, and the duration of the job. As the employer-employee relationship grows more attenuated through the involvement of intermediaries, the employer must specifically trace how it will maintain the right to control the employee’s work at the assigned worksites, which may include contracts between the petitioner and all companies involved with the employee working off-site.

The end result is a more burdensome standard for all H-1B petitions involving a third-party worksite, requiring employers to file detailed itineraries documenting the dates, locations, client name, client address, and client telephone number for each worksite. While prior memos have suggested that detailed itineraries are not necessary when an H-1B employee will work at multiple worksites, the February 2018 policy memo clarifies that the immigration regulations require employers to submit itineraries listing the dates and locations of such employment. The memo advises that even when an employee may be assigned to only one client worksite, the employer should nonetheless submit an itinerary with the same information as required for multiple worksites. Since USCIS may deny extension requests for failure to comply with an original petition’s terms and conditions, employers should maintain documentation that clearly demonstrates such compliance and remember to timely file H-1B amendment petitions as needed.