Increased Scrutiny for H-1B Work Visa Petitions Involving Off-Site Assignments
Published:  February 8, 2010

The H-1B work visa is available to foreign workers who have earned the equivalent of a U.S. bachelor’s degree, and who are being petitioned to work in the U.S. in a “specialty occupation” – where the attainment of a U.S. bachelor’s degree is typically a minimum requirement for the position. A significant number of H-1B petitions filed every year involve employers assigning workers to off-site, client locations to perform professional/specialty services, most notably in the information technology and healthcare industries. However, according to a memo issued by Department of Homeland Security/Citizenship and Immigration Services (CIS) last month, it is this type of H-1B worker arrangement that has become of concern, particularly with regard to issues of pay, work conditions and management issues. As a result, H-1B petitions involving third party workplace assignments are becoming the subject of unprecedented scrutiny, with requests for a wide range of documentation confirming the nature of the work assignment becoming the new policy.

In essence, CIS wants to make sure that a true employer/employee relationship exists between the H-1B petitioning company and the subject worker and thus will be inclined to request documentation to confirm, among other details: a) the H-1B worker is working under the direction and control of the H-1B petitioning employer and not the management of the company the worker is assigned to, b) a contractual relationship between the H-1B employer and their client (off-site workplace) and that the contractual language indicates that the worker will be under the H-1B employer’s control and management – with the H-1B employer retaining the right to hire, train and/or fire the worker and c) an itinerary for off site assignments during the course of the requested H-1B period of employment, and that each workplace allows for the worker to be under the H-1B employer’s control.

 While some H-1B employers may be able to provide the type and volume of documents requested by CIS, others may not, particularly where the off-site assignment path may not be certain at the time the H-1B petition is filed. To the extent this type of H-1B employer/employee relationship is contemplated, the parties are advised to draft as much of the supporting documentation (contracts, itineraries, etc) with the above CIS concerns in mind and include these documents in their initial H-1B filing.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois