As the 2019 H-1B visa petition season nears, U.S. Citizenship and Immigration Services (USCIS) has announced plans to more closely scrutinize the work relationship of certain H-1B applicants.  In a policy memorandum  issued last week, USCIS explained that it will request detailed documentation in situations where a sponsoring American employer indicates plans to assign H-1B visa holders to work at third-party worksites.  These work arrangements are common in certain industries, including the IT consulting industry.

The purpose of requesting such documentation is to ensure that a legitimate employer-employee relationship is maintained between the H-1B holder and the sponsoring employer throughout the duration of the requested visa period.  The guidance, effective Feb. 22, 2018, explains 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:

• The beneficiary will be employed in a specialty occupation throughout the duration of the requested H-1B visa period; and
• The employer will maintain an employer-employee relationship with the beneficiary for the duration of visa period.

To meet these requirements, visa petitioners must demonstrate that H-1B beneficiaries placed at third-party worksites have specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested on the petition.  Petitioners must also demonstrate that they will maintain an employer-employee relationship with visa beneficiaries despite the use of intermediary contractors, vendors, or brokers related to placing the beneficiary at a third-party worksite.  The policy memorandum also indicates that while an H-1B petition may be approved for up to three years, USCIS may elect to limit the approval period to that time which the petitioner will be placed in non-speculative work at the beneficiary worksite and maintain the requisite employer-employee relationship with the sponsoring employer. 

The FY 2019 H-1B visa petition season will begin on Monday, April 2, and employers should plan to file petitions as soon as possible on or after that date.  The H-1B visa cap is 65,000 visas, with an additional 20,000 visas available to foreign nationals who have earned a master’s degree or higher.  It is likely that the 2019 cap will be exceeded soon after the filing period opens.  If the petitions filed exceed the annual cap, a lottery will be held to randomly select the cases the agency will adjudicate.