H-1B Petitions for Roving Workers to Become More Difficult

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Despite the need U.S. employers have for qualified workers, the Trump administration continues to increase its scrutiny of H-1B petitions through a new Policy Memorandum concerning H-1B workers assigned to third-party locations. Last year the focus was on prevailing wages, when adjudicators denied H-1B petitions for entry level jobs. The flawed argument was that if the employer used a “Level One” (or entry level) wage, which typically applies to jobs that require only a bachelor’s degree, the job must not be sophisticated enough to qualify as an H-1B “specialty occupation.” Therefore, according to the denials, if the job requires only a bachelor’s degree but no experience, it cannot qualify for H-1B classification. Many employers appropriately took those denials to the Administrative Appeals Office, where they remain pending.

The current attack on H-1B petitions is on jobs that require the worker to travel to customer locations. While the regulations always have required employers to provide itineraries and contracts to show when and where and for whom the work will be done, it has been sufficient until recently to provide a master services agreement or current customer contract and a broad outline of projected job locations. Under the stated “Mission to Protect the Interests of U.S. Workers,” the new Policy Memorandum released late last week makes it clear that employers now must provide more details. The Memo explains that “[a]n itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services.”

This new Policy Memorandum builds upon prior guidance from U.S. Citizenship and Immigration Services that focused on the employer-employer relationship between the employer (H-1B petitioner) and “end-client,” where the H-1B employee works. The agency’s concern has been that in consulting or other jobs where the employee is at a third party, the employer that filed the H-1B petition does not have enough control over the worker to ensure compliance with the H-1B regulations. The practical implication of this new memo is that employers now will need to provide much more exacting details to hire H-1B workers who will work at third-party locations. The information will need to include the name and address of the customer, the dates the H-1B worker will be there, the name of the supervisor and a description of the control the employer will maintain over the H-1B worker, and any other details concerning the on-site work.

Despite the Trump administration’s disdain for immigration, the H-1B visa program remains an important option for organizations that need qualified workers. With careful planning and additional details, employers still should be able to get their petitions approved. At the same time, it would be helpful to contact U.S. Representatives and Senators to share with them how these increased burdens in the lawful immigration system make it more difficult to recruit and retain talented workers.